Opinion: A win for religious liberty at the U.S. Supreme Court

The empty playground at Trinity Lutheran Church in Columbia, Mo., shown in January 2016. (AP file photo)

Monday was a busy day for court rulings, and not only in Georgia. The U.S. Supreme Court had something to say about President Trump’s travel-ban-that’s-not-a-travel-ban, lifting the injunction against implementing the policy in many cases but waiting until October to hear the full case. The high court also ruled in an important decision in a case involving religious liberty.

The fact that the case known as Trinity Lutheran is considered a big religious-liberty case tells us much about how distorted our thinking, and jurisprudence, about free exercise and establishment of religion have gotten. Here are the basic facts of the case:

  • The state of Missouri created a “scrap tire” grant program to help defray the costs for resurfacing playgrounds with materials made from recycled tires. The program was funded by a fee levied on new tire purchases (not general tax revenues). It has limited resources, so not all requests are fulfilled.
  • A school in Boone County, Missouri, applied for a grant from the program. Its application wound up ranking fifth out of 44 applicants. Fourteen applications were chosen.
  • The school in Boone County, which on the merits should have been one of the 14, wasn’t. Why? Because it’s run by the Trinity Lutheran Church.

In a sane world, this would have been a 9-0 case in which the state was ashamed of its argument that giving money to resurface a church school’s playground amounted to an unlawful establishment of religion. (Actually, in a sane world the state never would have denied the school’s application.) As it was, the fact it was essentially a 7-2 decision is somewhat heartening — although, as I’ll cover below, those two dissenting votes remain quite disturbing.

***

The tension between the Free Exercise and Establishment clauses for many decades was resolved in favor of the latter, with only some reversal in more recent years. This has led to such ridiculous situations as … a church school being denied a grant for resurfacing its playground simply because it’s a church school, not a secular school. The idea that this somehow amounts to government sponsoring religion beggars belief; it is rather, and plainly so, an example of government discriminating against a religious entity. But for the fact a church operates the school, it would have received the grant. That’s the basic definition of discrimination.

Here’s how the opinion, written by Chief Justice John Roberts, puts it (the references to McDaniel concern a 1977 case, McDaniel v. Paty, in which the court ruled a minister could not be barred from serving as a delegate to his state’s constitutional convention simply because he was a minister):

“[T]he Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: ‘To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.'”

To believe otherwise is essentially to believe that the government can do most anything to infringe on your free-exercise rights, short of barging in and stopping a worship service. (This is almost certainly why progressivist politicians such as Hillary Clinton have stopped referring to free exercise, or freedom of religion, in favor of the far more limited “freedom of worship.”) If you are excluded from an otherwise open, public activity or program simply because you happen to be religious, you don’t really have the right of free exercise.

***

If you want to see someone try to justify such an infringement, look no further than the dissent by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg. Apparently, Sotomayor’s famous commitment to “empathy” does not extend to empathizing with a school whose leaders simply want a safer playground for their students, as long as the school in question is a religious one.

In fact, Sotomayor begins with a startlingly sweeping statement:

“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

Really? Set aside the overly broad assertion that this ruling means “the Constitution requires the government to provide public funds directly to a church” (rather, the ruling means the Constitution bars the government from discriminating against a church in an otherwise neutral public grant program). If you believe that the “separation of church and state” requires the government to discriminate against church schools in the funding of playground surfaces, you just might be committed to a principle out of all proportion to its original purpose.

This is the kind of thinking that, if indulged much longer by many more people, will lead to, say, the curtailing of tax exemptions for churches as non-profit entities — wrapped up in a faux concern for the integrity of the church. There is no reason to think a $20,000 grant for a playground surface will lead to someone’s being coerced into attending Trinity Lutheran, or a Lutheran church more generally, or a church of any kind, or a house of worship of any faith at all. Nor is there reason to believe a $20,000 grant will tempt a minister at Trinity Lutheran — or the Lutheran church in general, churches of any kind, or houses of worship of any faith — to adulterate their religious tenets. Such hijacking of either the public purse or the pulpit’s independence was the reason for the Free Exercise and Establishment clauses. We have strayed many miles from that purpose when we stand along the line Sotomayor would draw.

Reader Comments 0

185 comments
AndyManUSA#45
AndyManUSA#45

Someone may want to try rebooting the ajc blog server, just sayin...

AndyManUSA#45
AndyManUSA#45

So far Donald Trump has proven to be just another big government fascist, incorporating the health insurance industry into the federal government, so that it serves the corrupt instead of the people but I am seriously enjoying the way he's taking it to the deep state and their clown media.

I'd like to give the thumbs up but not yet.

AndyManUSA#45
AndyManUSA#45

The Republicans are telling us that we, the people of the United States, the most caring and giving nation in the world, are incapable of taking care of our own poor and downtrodden. That the government must do it for us, even though they can't care for our veterans. Or maybe they just want another fat account they can pilfer for their pension funds.

These clowns can't even write a contract that ensures they always have the most up to date software, now they want to look over your health care?

Will they get themselves out of our lives or will we get them out of our lives?

Finn-McCool
Finn-McCool

GOP nervous about confronting the piper?

They've been selling themselves on "Oh, we gonna repeal us some Obamacare, oh, yes, lawdy...yes, cast your vote right here. OH LAWDY"

Now they see the piper is a mystical substance that can not be denied.

Pay up, you heathen GOPers. Pay for your sins! Pay the piper! REPENT!

AndyManUSA#45
AndyManUSA#45

Look man, right now, as we stand, the bill is obamacarelite. All we can do is trust that they will incorporate free market principles in the future versions. With that being said, anyone who trusts the Republicans is a fool.

You're just acting like a tool, as usual.

Your side won, try enjoyment out.

Finn-McCool
Finn-McCool

Health care?  Big fat GOP Fail

Thanks GOP....we knew we could count on you and yours.

AndyManUSA#45
AndyManUSA#45

Yes, the dummycrats created, cared for and fed the Russian monster and then it ate them.

LOL

MAGA

JohnnyReb
JohnnyReb

Just to keep it in perspective and to discount all the wild accusations from Dims.....

Repubs are having a difficult time agreeing on how to fix Obamacare.

Why?

Because the Dims created the entitlements of subsidies and expanded Medicaid.

The best fix would be to simply repeal ACA in total, then do improvements like selling across state lines, high risk pools, stay with daddy until 26, no mandates.

But taking the entitlement candy is not politically possible.

Again, thanks to the Dims. 

DeepStateDawg
DeepStateDawg

This is what i mean by detestable: 


"Republican Senators are working very hard to get there, with no help from the Democrats," Trump tweeted. "Not easy! Perhaps just let OCare crash & burn!"


Lovely. 

Doomy
Doomy

@JohnnyReb


Schumer is a liar. The man kept saying Trump himself was under investigation when he himself had been told by Comey that Trump was not personally under investigation. And yet Schumer persisted in perpetuating what was a blatant lie. 

Doomy
Doomy

Admittedly, its funny when the progs try and claim that the news media is not biased, particularly against Trump. 


"How negative was press coverage of President Trump's first 100 days in office? Far more than that of Barack Obama, George W. Bush, or Bill Clinton, according to a new report from the Harvard Kennedy School's Shorenstein Center on Media, Politics and Public Policy.


The Harvard scholars analyzed the New York Times, Wall Street Journal, Washington Post and the main newscasts (not talk shows) of CBS, CNN, Fox and NBC during Trump's initial time in office. They found, to no one's surprise, that Trump absolutely dominated news coverage in the first 100 days. And then they found that news coverage was solidly negative — 80 percent negative among those outlets studied, versus 20 percent positive.


The numbers for previous presidents: Barack Obama, 41 percent negative, 59 percent positive; George W. Bush, 57 percent negative, 43 percent positive; and Bill Clinton, 60 percent negative, 40 percent positive.


"That said, the coverage of some news organizations was so negative, according to the Harvard study, that it seems hard to argue that the coverage was anywhere near a neutral presentation of facts. Assessing the tone of news coverage, the Harvard researchers found that CNN's Trump coverage was 93 percent negative, and seven percent positive. The researchers found the same numbers for NBC."


JohnnyReb
JohnnyReb

@Doomy

Don't know if it was mentioned in the report, but clearly during all the Trump attacks MSM became the leaders of the Democratic Party.

Attack lines and themes came out of MSM only to be parroted by Dem leaders.

DeepStateDawg
DeepStateDawg

@Doomy Well, the thing that you're forgetting is that Trump is a truly detestable human being, in addition to being a pathological liar. 


At least W was a likable fella and generally honest. 

Doomy
Doomy

@DeepStateDawg @Doomy


The exact same can be said of Hillary- a truly detestable person and a pathological liar. 

SGTGrit
SGTGrit

@DeepStateDawg @Doomy 

Huh? I don't understand the point of your reply although Trump seems to be able to take care of things himself, so I don't pity him.

Caius
Caius

Folks it is not about the church.  

It is about the "free exercise" clause in the 1st Amendment. That is what the majority held in their opinion. Sotomayor, in dissent, is writing about the "establishment" clause in the 1st Amendment and sees this case as damaging to the "establishment" clause. 

The majority said the State discriminated against the church just because it is a church.  Sotomayor says that by giving to a church the State is helping to "establish" that church.

Now does the opinion mean that down the road a state may be required to give to religious schools the same amount of money per pupil that it gives to public schools?  Stay tuned.



SGTGrit
SGTGrit

@Caius Helping to establish that church...not even close. The fund was established by levying a fee on tire purchases not through the general tax fund. Members of that church along with everyone else who bought tires was subject to that fee equally. Depriving the school access to that fund just because the school is a Christian school is discriminatory because church members buying tires were all subject to the same fee.

Doomy
Doomy

It would appear that Sonia Sotomayor, the "wise Latina", uses toddler legalese to make her arguments. 


And in other news CNN has to fire 3 employees for yet another fake news story on Russia. Sooo  funny. Even funnier is watching the whole Russia thing starting to boomerang around on the Dims- Loretta Lynch, the tarmac meeting and possible obstruction, Obama doing nothing about Russian hacking, the FBI using a personal vendetta as payback against General Flynn, and on and on. 

JohnnyReb
JohnnyReb

@Doomy

Do you think Hillary and Loretta would be allowed to share a cell?

Doomy
Doomy

@JohnnyReb @Doomy


Dunno. But now R Congressman are legitimately raising the specter that former President Obama may be called before Senate hearings to answer as to why he stood by and did nothing.  


The Dims are starting to reap what they've been sowing with this Russian collusion nonsense. 

DeepStateDawg
DeepStateDawg

@Doomy Sigh. Of course, it should be noted that CNN has some level of journalistic standards that result in outcomes such as this. 

McGarnagle
McGarnagle

@Doomy @JohnnyReb


This investigation nonsense is getting out of hand. Now no one has their hands clean.


Although I do believe this all began during the investigation craziness of Hillary Clinton. Emails and Benghazi. How many convictions did we see from years worth of committee hearings and investigations?

JohnnyReb
JohnnyReb

@McGarnagle @Doomy @JohnnyReb

The Congress cannot convict, that comes from the Justice Department.

You really did not expect the overly politicized Obama Justice Department to indict Hillary Clinton, did you?

Doomy
Doomy

@DeepStateDawg @Doomy


CNN has high journalist standards? LOL! 


That's hilarious. You do realize that CNN has a string of controversial stories. You also do realize that CNN by one count has ran negative stories on Trump in 93% of its coverage of Trump. The idea that the network is fair or impartial is laughable. It is anything but.


https://en.wikipedia.org/wiki/CNN_controversies

JohnnyReb
JohnnyReb

@Doomy @JohnnyReb

Yep, my crystal ball showed a backfire on the Dims.

Notice MSM is backing off, and when was the last time you heard any Dim call for impeachment?

I've felt all along the Obama administration was very corrupt and that is being shown now.

That of course will not stop the monument that will be demanded and erected even before his death.

DeepStateDawg
DeepStateDawg

@Doomy @DeepStateDawg Relative to wherever you get your news, they're the gold standard. 


Remind me the circumstances behind Fox News firings of late? For non stop dubious reporting, purveying of innuendo and lies? 


No. For butt-grabbing? Yes. 

Doomy
Doomy

@DeepStateDawg @Doomy


It would appear the, ahem, "gold standard" of news just had to fire not 1, not 2, but 3 people for a fake news story. 


How many Fox reporters have been fired for fake news lately? 


Furthermore, sexual harassment has nothing to do with the accuracy of news stories. 


The truth is they all have inaccurate and sometimes completely false news stories gathered from a poor source. But having to fire 3 people for all 3 of them being in on a fabricated story? Now that's something else. 

McGarnagle
McGarnagle

Quick question. If instead of this being a Lutheran school, it was Mosque or Hindu school. Would we still feel the way?


I can't count how many times how I heard the argument of how "my tax money went to paid for that!" in regards to a non-christian event or project. 


I am fine with the decision but lets call out the hypocrites when they withhold funds to non-christian affiliated institutions. The incident in  Newton County last year comes to mind.

DeepStateDawg
DeepStateDawg

@McGarnagle Yeah. I was gonna take that track, but thought i'd try to get a shot in on Kyle's rather thin application of "sanity" applying to this situation. 


Also, don't forget that Christianity is under attack! So they're not hypocrites... they're at War!

Doomy
Doomy

@McGarnagle


It would be fine with me. Furthermore, if Muslims in concentrated areas like Dearborn, MI want to use vouchers to send their kids to Muslim oriented schools I'm cool with that. 

Doomy
Doomy

@DeepStateDawg @McGarnagle


"Also, don't forget that Christianity is under attack!"


It would certainly seem that way in the Muslim world where Christian churches in Egypt, Iraq, and other places are routinely bombed and where many coptics on busses were murdered a week or 2 ago in another terrorist attack in Egypt.  

McGarnagle
McGarnagle

@Doomy @DeepStateDawg @McGarnagle


That's overseas. But not in the US. Christians living here have no sense of the word persecution. Frankly its rather insulting to the ones living overseas.

DeepStateDawg
DeepStateDawg

@Doomy @DeepStateDawg @McGarnagle Yeah. I'm pretty sure a liquor store in Perth, AUS was knocked over yesterday too.


Liquor stores are under attack, and they're at least as important of an institution as churches are in America. May want to call homeland security so that the world police can get right on it. 

Doomy
Doomy

@McGarnagle @Doomy @DeepStateDawg


So the various Muslim attacks against this majority Christian nation are not persecution?- 9/11, Fort Hood, Boston marathon, Orlando massacre, San Bernadino, and on and on. 


How many comparable mass terrorist attacks have you seen by Christians directly aimed at Muslims in that time frame? 


I can't think of one except that Bernie Sanders supporter attacking 2 Muslims a few weeks ago. And that wasn't even a mass terrorist attack.  

DeepStateDawg
DeepStateDawg

@Doomy @DeepStateDawg @McGarnagle I"m sorry. Is it random or targeted ? 


Comparing people who  are suffering in war-torn areas of the world to adults fussing about who should get tire shreds on playgrounds -- that sound pretty absurd to me. 


But hey, if it's the only thing you have, then go with it.