A massive breach in the wall of separation between church and state
The other ruling today is a loss for the separation of church and state.
In the church-state case, the court ruled 7-2 that it violates the Constitution’s protection of the free exercise of religion to exclude churches from state programs with a secular intent — in this case, making playgrounds safer.
Missouri’s state constitution, like those in about three dozen states, forbade government [to spend] any public money on “any church, sect, or denomination of religion.”
Trinity Lutheran Church in Columbia, Mo., wanted to participate in a state program that reimburses the cost of rubberizing the surface of playgrounds. But the state said that was not allowed.
The exclusion has raised big questions about how to uphold the Constitution’s prohibition on government support for religion without discriminating against those who are religious.
“The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand,” wrote Chief Justice John G. Roberts Jr.
Oh come on. That’s the whole point of the Establishment Clause: that religious bodies are a special case that government needs to stay away from. Churches don’t want the Feds telling them what to do, but they do want to pocket the federal funding when they can. It shouldn’t work that way.
The two dissenting votes came from Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Sotomayor issued a stinging dissent, and made clear her displeasure by summarizing it from the bench after Roberts announced the decision.
She said the ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
She concluded: “If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”
Nick Little at CFI had this to say:
“The Supreme Court has detonated a massive breach in the wall of separation between church and state,” said Nicholas Little, Legal Director of the Center for Inquiry. “In fact the justices have laid the groundwork for additional confusion and conflict, as they have they provided no real method for deciding whether future applications by churches for taxpayer subsidy will be acceptable or not.”
In a split decision, the Supreme Court ruled that excluding the playground of Trinity Lutheran Church from a public grant program offered by the Missouri Department of Natural Resources to fund the purchase of recycled tires to resurface playgrounds violated the Free Exercise Clause of the First Amendment. The Court held that Trinity Lutheran was excluded from the program because it was a church, which constituted religious discrimination.
“This case was never really about a playground or recycled tires,” said Little. “This was about whether religious institutions can be eligible for public funds for what they claim are secular purposes. The Court has long held that the direct cash funding of religious organizations violates the Constitution. In paying for the renovation of its playground, the state of Missouri relieves Trinity Lutheran Church of a financial burden, which frees the church to use those funds for explicitly sectarian purposes. That is unacceptable.
“It is all the more confounding that the plaintiffs were not even willing to say that the playground had no religious purpose, as the preschool for which it is used is considered part of the church’s religious mission,” said Little. “We are deeply concerned about what happens next, as other sectarian organizations find new and novel ways to siphon taxpayer dollars into their churches, temples, and mosques.”
The money they save on secular sundries that the Feds pay for can go into buying books that say evolution is a lie and children should be whipped for impudence.
Maybe CFI os some similar organisation should have words with their friendly neighbourhood Imam about acquiring state funds for Mosque related children play facilities.
Is the playground open to the public? Can anyone bring their kids there? Or are taxpayers being forced to pay to subsidize not only a religious institution, but a private one at that?
I’m looking forward to the time we see this…
Rob, don’t hold your breath. We’re not going to see that with this court.
Hey, stop treading on my dreams!
I’m all for keeping kids safe but this is a church school, so that particular horse has already bolted. A padded playground ain’t gonna help un-mush their poor, God-filled brains.
Hmm, the church doesn’t have to pay taxes. How is that for religious discrimination?
I’m sure the Stein voters are proud.
Kristjan – they also don’t have to follow non-discrimination policies required of everyone else receiving government funding. The courts believe it would be a violation of religious freedom to be told they have to follow rules they don’t like because God.
I’ve just been taking Akhil Reed Amar’s Coursera course from Yale on America’s Unwritten Constitution, and just today came to a video from week 3 which addresses this very point. Although it was recorded before this decision, it’s clear he would have sided with the majority. His discussion comes at about 19 minutes in on this video: https://www.coursera.org/learn/unwritten-constitution/lecture/HylqY/putting-precedent-in-its-place-part-1
The argument is that the establishment clause is about equality of religion (and non-religion) more than it is about separation. If a state program is open to funding for private groups, it can’t be for all private groups except those advocating religious views, or it becomes discrimination against religion.
There was an opportunity for a “no public funds of any kind for religious groups” amendment to the U.S. Constitution in 1875, from Congressman James G. Blaine (R-ME), with the backing of President Ulysses S. Grant, but it was defeated (by one vote). The Blaine amendment was then passed by numerous states and added to state constitutions, including Missouri’s. It was primarily driven by anti-Catholic Protestants who wanted to block public funding of Catholic parochial schools. The amendment in state constitutions has been largely ignored, and seems likely to be found unconstitutional if challenged in federal court.
BTW, I think it is also instructive to look at the very first case to apply the establishment clause against the states, 1947’s Everson v. Board of Education, and compare it with this case. The main difference is that the payments in that case were indirect (to students of religious schools) rather than direct.