Peter Greene reviews yesterday’s decision by the U.S. Supreme Court, which said that the state must make public funding available to religious institutions so as not to discriminate against them. The case involved the Trinity Lutheran Church in Missouri, which sought public funding to resurface the playground of its preschool. Initially, the state said the money was only available to public schools, because a prohibition in its state constitution. After the case advanced, the state relented and paved the playground, which made the case moot. But the Court ruled anyway, 7-2, that the state had to fund the church playground.
The Founders were very clear about the importance of not entangling church and state. The First Amendment explicitly says “Congress shall make no law” establishing any religion. It is not a big logical leap to extend that Amendment to say “Congress shall make no law” establishing many religions. Religious liberty is best preserved by keeping church and state separate.
Greene writes:
What matters in a case like this is the reasoning. Here’s the oft-quoted excerpt from the majority:
“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.
As Bloomberg notes, this is a big deal:
“It’s the first time the court has used the free exercise clause of the Constitution to require a direct transfer of taxpayers’ money to a church. In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes. Somewhere, James Madison is shaking his head in disbelief.”
A portion of the majority made an attempt to mitigate the effects of the decision with a small footnote (the full opinion is here).
[The footnote: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”]
That note may be meant to indicate that the ruling is meant to be narrow– but not all of the seven justices who ruled against the state signed off on this footnote.
Reading through the decision leaves little mystery about where the majority are headed. The church argued that it was being disqualified from a public benefit for which it was otherwise qualified. The majority agrees:
“The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious quality. Under our precedents, that goes too far.”
And just in case that’s not clear enough, here’s Justice Gorsuch, joined by Justice Thomas, explaining why they don’t agree with footnote three. They argue that there is no point in distinguishing between religious purposes and activities, and that the exercise clause does not care, either.
“…the general principles here do not permit discrimination against religious exercise– whether on the playground or anywhere else.”
In other words, giving public tax dollars to a church-run private school would be just fine. In fact, it’s hard to know exactly where the court would draw the line. If an organization is in the community, competing for community funds for an activity, you can’t rule them out just because they are a religious organization. If a church wants money to pave a playground or run a school, you can’t deny them just because they’re a church.
The dissenting opinion sees this pretty clearly:
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.
That sounds about right. With this decision, the wall between church and state is pretty well shot, and there is nothing to stand in the way of, say, a federally-financed multi-billion dollar program that would funnel money to private religious schools. Trump and DeVos could not have a brighter green light for their voucher program.
I’ll argue, as always, that churches will rue the day the wall is taken down. The separation of church and state doesn’t just protect the state– it protects the church, too. When you mix religion and politics, you get politics. And where federal money goes, federal strings follow. Sooner or later the right combination of misbehavior and people in federal power will result in a call for accountability for private schools that get federal money– even religious schools. And as the requests for private religious vouchers roll in, folks will be shocked and surprised to find that Muslim and satanic and flying spaghetti monster houses of worship will line up for money, then the feds will have to come up with a mechanism for determining “legitimacy” and voila! That’s how you get the federal department of church oversight. Of course, this will only happen once we’re finally tired of the idea that charter and voucher schools don’t have to be accountable for anything to anyone…
The church in question claimed that their daycare was a secular activity. If they are generating income from a secular daycare, maybe churches should be taxed on their secular activities.
The minute we interpret laws that protect the perceptions of those doing the discriminating or even killing, we are on shaky ground. Using religion as a defense to discriminate infringes on the right of others to be treated fairly by the laws. The same is true for all the recent killings of minorities by police. When the officers state that they fear for their lives, they are getting off the hook for the offense they committed. The fact that they killed someone no longer is the issue because the laws are written to protect police officers perception of the situation. Traditionally, we have judged people by what they did, and not how they felt, which, in my view, is a perversion of the law. This type of uneven application of the laws undermines justice. Laws are written and interpreted to protect the powerful and connected.
The Supreme Court will hear the baker’s refusal to provide a cake for a gay wedding case in the fall. Will we get a “religious freedom” ruling in this case? http://www.latimes.com/politics/la-na-pol-court-gays-religion-20170626-story.html
Retired teacher, this case about the baker from Colorado pits his religious freedom vs. the right of gays not to suffer discrimination and bias. We know that Gorsuch will choose the baker. We don’t know how the decision will turn out. If religious freedom is more important than equal treatment under the law, then we will have cases where proprietors refused to serve blacks or Muslims as a matter of religious faith.
People can — and do — use religion as an excuse for pretty much everything, including mass murder during the Crusades.
And by Hitler
Greene’s analysis is flawed on several points. First, there is no “wall of separation” between religion and government, expressed in the US Constitution. The first guidance of the “wall” was in the case of Everson v. Board of Education of the township of Ewing. see
https://www.oyez.org/cases/1940-1955/330us1
Q After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are “separate and so indisputably marked off from the religious function” that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a “general program” to assist parents of all religions with getting their children to school. END Q
Public tax money can be used to provide for transportation, and other things, which are separate and indisputably marked off from the religious function. No person can assume that providing tire chips to a school playground, in any way, promotes or establishes religion.
Charles,
No more posts today. Saying the same thing over and over does not make an assertion true.
Chas,
For a little history on the term “wall of separation” please see:
http://www.constitution.org/tj/sep_church_state.htm
https://www.loc.gov/loc/lcib/9806/danpre.html
I would like every mosque, temple, ashram and churches of all denominations to ask for money for capital expenditures for their schools, senior centers, recreation halls, youth centers, etc. right now.
Mary
I’m hoping the Satanists are already on it. They’re usually good for that kind of thing.
“Satan Preschool”
Satan’s playground surface
Is burning rubber tires
With funding, state must help us
To stoke the burning fires
That’s my grant application, by the way
@marynwill: I don’t know if your comment is humorous, or if you are serious. The fact is, that Churches, mosques, temples, and synagogues may receive public funding for capital improvements.
see
Tilton v. Richardson (1971).
In Tilton, the court upheld the Higher Education Facilities Act (HEFA), a federal statute that awarded construction grants to colleges and universities, including those affiliated with religious institutions.
see
https://www.oyez.org/cases/1970/153
That does it, I’m starting a School of the Flying Spaghetti Monster. There will be two buildings on campus- Pasta Primary and Spaghetti Secondary.
Uniforms will consist of pirate outfits.
I will expect to receive vouchers and other funding from the public coffers.
Pastafarians, unite!
R’Amen.
Zorba,
You are not far from the mark. The Arlington National Cemetary has an array of symbols for religious groups that are well beyond the imaginaries of many people. These approved symbols are permitted on gravelmarkers.
I wonder if the Supremes are aware of these government approved religious emblems or the case of a soldier whose religious preference was acknowledged posthumalously.
Click to access emblems.pdf
Sorry—gravemarkers, not gravelmarkers. Also Cemetery not Cemetary.
See also the general discussion of religious and other gravestone markers at the Arlington National Cemetery
putting a religious symbol on a grave in a public space does not amount to funding religion.
And may cannelloni be with you!
I’ve got a barn that I can convert into the Cannelloni Church of the Original FSM. I do believe that I will need some tax monies to make that conversion possible, at least $100 grand. Grand that may be the FSM!!!
I have a barn, too, Duane.
That will be the start of my FSM school. I have additional out-buildings as well for other grades, and for an administration building.
But, like you, I need tons of public money to
get this accomplished.
It is more than just the prohibition of an established religion. It says “make no law respecting an establishment of religion”. That is the clause that exempts church property from taxation.
The wall between church and state is a two-way wall, and if they want to tear it down then there will be hell to pay.
I am surprised that Kagan and Breyer went along with this decision while Sotomayor and Ginsburg dissented. Any insights on this?
I have no clu, unless they were taking the narrowest interpretation. Ginsburg and Sotomayor saw where this decision was heading.
The only possible thumb in the dike preventing the ever present danger of flooding tax monies to religious institutions (who themselves do not participate in the taxing system, i.e., are tax exempt-in other words hypocrites for wanting this funding) is the footnote #3 in the decision:
“This case involves the express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
I imagine the Show Me State can now expect a slew of churches wanting tax monies for playground resurfacing, eh!
But I sure that at least the 5 supposed “conservative”, actually xtian regressive reactionary right, judges will find a way around that wording, afterall, they are brilliant legal minds. F them!
They want tax money, then they should lose their tax exempt status and pay taxes. Period. Of course, I have always believed that churches, temples, mosques, whatever, should be taxed.
Completely agree Zorba.
But if churches were taxed, that would clearly impact their ability to exercise freely — cuz then they would not have the money to pay for a gym membership.
After further thought, If churches have to pay for a gym membership, it’s not free exercise, so, according to the Constitution, not only can’t churches be taxed, but the state must actually foot the bill for the gym membership as well.
I wonder how many churches even realize this.
Daniel Sheehan’s book, The People’s Advocate reminded me that we are pawns in this quagmire.
I won’t give up, but the majority isn’t paying attention.
When you open up a public business on a public street, you enter into a social contract where you can expect and demand to be protected and served by public police, firefighters, street sweepers, etc. etc, etc. No one wants those public servants to inquire into your lifestyle choices before they decide whether they want to protect and serve your Bigot Bakery, no matter what personal preferences and strong religious beliefs they may have.
For Crying Out Loud, Grow Up, America❢
From the article:
“And as the requests for private religious vouchers roll in, folks will be shocked and surprised to find that Muslim and satanic and flying spaghetti monster houses of worship will line up for money, then the feds will have to come up with a mechanism for determining “legitimacy” and voila!”
As a firm believer in the FSM and his noodly appendages, I am shocked, shocked that Peter Greene would even begin to insinuate that MY almighty being be included in the same thought as muslims, satanists or even xtians, jews, or any other so-called religions. The FSM does not look kindly at such blastphemy!!
Missouri Constitution: Article IX-Education
Prohibition of public aid for religious purposes and institutions.
Section 8. Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.
Is there any GD effin doubt what that statement means???
And the SC is supposed to have some of the most brilliant legal minds???
I thought that one had to read to be a “brilliant legal mind”.
That sections makes no distinction between “secular” vs “religious” usage of those “public funds”. In the State of Missouri IT IS PROHIBITED to use ANY PUBLIC FUNDS WHATEVER, ANYTHING IN AID OF ANY RELIGIOUS CREED, CHURCH. . . .
I thought those “brilliant effin minds” believed in “states rights” and “devolving” decision making to the states.
I’ll play devil’s advocate here. Imagine that Missouri’s Constitution also had a section that provided that no government services funded by public money — such as fire departments — could be used by religious institutions. Would that be ok?
What ifs are fine and dandy FLERP, but I have no opinion on your scenario as it does not pertain to the discussion at hand. It seems to me that the wording of the prohibition for the purpose of monies for education, after all it comes under Article IX-Education, couldn’t be anymore explicit as to that prohibition.
I don’t know how your scenario of fire protection services would play out in the courts.
I think it does pertain to the discussion at hand. But even if it doesn’t, surely you can bring yourself to have an opinion about it, no?
As for the wording issue, I don’t think there was any dispute in this case about the meaning of the Missouri constitution. The sole dispute was about whether the application of the Missouri constitution violated the Free Exercise clause of the US Constitution. The 10th Amendment doesn’t give states the right to enact laws that unconstitutionally abridge the free exercise of religion. That’s indisputable, legally speaking.
I understand that state’s can’t abridge someone’s constitutionally protected rights. The question in my mind, as has been brought up here then, which should take precedence when differing rights are abridged. In this case my right to not have to pay for someone else’s sectarian dealings or that someone else’s right to religious freedom. I believe that the SC, with its core of hardcore xtian religious zealots have gotten this one wrong. And yes the SC has gotten things wrong before and reversed, which I think will eventually happen in this case. And down the road in time the opening for those who oppose this ruling comes in the form of the footnote #3.
But I’m no lawyer, haven’t studied much law and am merely a peeon in the pantheon of the political realm so my opinions matter not except to a few here-LOL! Even my dog won’t listen! Now the cat, she’s a different story!
Re “which should take precedence when differing rights are abridged,” the answer is the US Constitution, when it comes to the First Amendment (and all other rights guaranteed under the Bill of Rights). So the only debatable legal question here is whether SCOTUS got the US Constitution right.
By the way, go to scotusblog.com and check out their coverage of this case. They have a wide variety of views represented, including what I think might be your view. It’s a fantastic site for Supreme Court coverage. It also has links to all the papers submitted in each case.
Thanks for the link FLERP
Churches -and by extension, the schools they run)– are already effectively getting a publicly funded subsidy by not having to pay property taxes on their often considerable
Real estate holdings.
I could support governmental monies going to support a public playground which happens to be in church property. In New York Stare money is even provided for services such as PT, OT, and Speech at religious institutions. This same services is also given to children in their homes or day care facilities, if appropriate.
However, that is a far cry from supporting what is in essence a private school. With public dollars should come public scrutiny. The Catholic Church or other religious entities should be (and many are) concerned about the possibility of repercussions including government interference with their programs.
If public schools have to jump through hoops, so should other entities receiving funding from the state and federal government.
It will be interesting to see how this decision affects the education system in the United States.
Chief Justice Roberts stated in his confirmation hearing that he would respect precedent.
What is the precedent for requiring that a state transfer funds to a religious school?
It just occurred to me that perhaps what Roberts meant was that he would respect Presidents.
And since Trump undoubtedly supports giving public dollars to private religious schools, Roberts respects that policy.
I think I am finally starting to understand the fine legal minds of folks like Roberts.
Is playing on the playground part of the Lutheran religion?
Is that why refusing the Lutheran school public money for the playground resurfacing constitutes abridgement of free exercise of their religion?
Exactly right. They could not freely exercise their religion without access to recycled tires on the playground.
Ask Justice John Roberts and Neil Gorsuch
“Free Exercise of Religion”
Jesus walked on water
And Lutherans on tires
And Hell is getting hotter
Supremes are lighting fires
“The Holey Trinity”
The Father, Son and Holey tire
The Holey Trinity
Is really something to inspire
A Lutheran or three
After sleeping on it, I think I now understand the logic in the Court’s decision.
The playground is a place for children to exercise “religiously” (on a daily basis), right?
And if the religious school did not get the money from the state — if they had to pay – to resurface the playground, then that exercise would not be free.
So, by denying the church school the grant money, the state is abridging free exercise and thereby violating the Free Exercise clause in the Constitution.
QED.
PS I also exercise religiously (at Planet Fitness) and as it stands now, I have to pay for that. I am not a lawyer, but given the recent ruling, I believe this may also be unConstutional. It certainly is not good for my constitution to not exercise.
What’s all this fuss I hear about the free exorcise of religion !?
That’s not fair — exorcists have to eat and pay rent, too !!!
Does that mean if I need an exorcism, I don’t have to pay for it?
Or is there a deductable?