Will the Supreme Court Turn against Religious Liberty – Part 1

on September 27, 2016

The Alliance Defending Freedom (ADF) highlighted the crossroads situation that America faces with respect to religious liberty in two panel discussions at Capitol Hill on September 16. These discussed first the only religious liberty case now accepted by the Supreme Court, Trinity Lutheran Church vs. Pauley, and a second panel concerning the future direction that the Supreme Court can be expected to take with religious liberty in the coming years.

David Cortman, an ADF Senior Counsel and Vice President, Daniel Mach, Director of the American Civil Liberties Union Program on Freedom of Religion and Belief, and Keven Marshall, of the Jones Day law firm, who specializes in complex litigation before state and federal courts, discussed the Trinity Lutheran case.

Cortman began by noting that the case is a very straightforward one of whether or not a religious organization – in this case, a house of worship – gets government funding for a non-religious purpose. It concerns a child learning center owned by Trinity Lutheran Church in Missouri which won a competition for a state environmental program that provides funding for repaving playgrounds in rubber to aid in child safety. The award is given to the most worthy applicants. Cortman noted that the “church grounds [are] open to everyone,” and 95 percent of the children who use the playground don’t attend the church. The church was the fourth ranked of many participants, and received the award. After learning that the award had in fact been given to a church school, the State of Missouri withdrew it, due to the “Blaine Amendment” in its state constitution, prohibiting state aid to religious schools. Cortman noted that state aid is allowed at the federal level, and arguing in federal court that the Blaine Amendment is unconstitutional, the church lost at the original federal trial court, garnered support from one federal judge on appeal, and hopes for at least five justices on the U.S. Supreme Court to overturn the ruling. Cortman emphasized that the church met the criteria for award better than almost any other participant, and was denied the award solely because it was a church. “There is nothing behind these facts, [the] church run preschool [was] pretty popular.”

Marshall noted that America is “locked” in a struggle “about the place of religion” in American life. This is above all resulting from the struggle for homosexual liberation, and how the government can give “equal dignity” to everyone. Recently, he said, the U.S. Civil Rights Commission called all adherents of traditional morality “hypocrites and bigots.” Marshall said the current case is similar to another case of about ten years ago, Locke vs. Davey, in which the Supreme Court denied state aid to a student claiming state aid who chose a theological course of instruction. In that case, Chief Justice Rehnquist said that the State of Washington was pursuing an antiestablishment objective in good faith. The court held that the establishment clause did not require the State of Washington to withhold aid, but the free exercise clause did not preclude it. The problem with this line of reasoning, Marshall noted, is that if it is permissible to exclude religious organizations from “broad public benefits … what can you not exclude them from?” By “excluding religious” organizations, the environmental program is made less effective. Missouri is harming itself, Marshall concluded, in order to harm religious organizations.

Mach said that if the state wins in this case, the status quo will be maintained, whereas if the church wins, it will undo provisions against the funding of religious schools in 30 states. There is a “long-standing view that dates from the founders” against state aid for religious education. While this disadvantages religious organizations, on the other hand, it protects “church autonomy.” It is, Mach said, a “bright line rule … that the court has consistently held to.” It means that there are “more hands off requirements” when the state deals with churches. Mach maintained that the establishment clause prohibits state funding, rather than the free exercise clause requiring the church be an acceptable applicant. He said that the constitution doesn’t “force” the government to fund religious organizations.

Cortman responded that the prohibition of state funding for religious organizations was “status-based discrimination.” It says to churches “we don’t like who you are.” Cortman noted that Joshua Davey, the student in the Locke vs. Davey case, could receive state aid for any academic course except the devotional theology course he chose. By contrast, Trinity Lutheran Church is barred completely from receiving state funds. The case “flips the First Amendment on its head,” he maintained. The First Amendment was intended to protect organized religion from state interference, in this case, the church is not being preferred, but penalized. He further claimed that the case does not involve state aid in support of religious instruction, which was condemned in James Madison’s Memorial and Remonstrance against Religious Assessments, alluded to by Mach.

Mach countered that the Memorial and Remonstrance addressed the “support of clergy and churches.” He claimed that the “state’s case here is easier than [in] Locke.” The funding in the Locke case was state aid to education, whereas the funding in the Trinity Lutheran case is a “direct cash grant” to a church.

But Cortman countered that the Supreme Court has never banned funding to churches for non-religious activities. He also pointed out that the 1947 Everson vs. the Board of Education decision, which introduced the strict separation of church and state that has resulted in many prohibitions of public religious expression and religious involvement in national life, doesn’t “single out religious groups” for disfavor.

Marshall noted that the Supreme Court has said that state money for religious organizations may be a “clandestine establishment of religion,” but he said that although direct funding is “capacious,” it can be done. Cortman responded that state aid for nonreligious purposes that results in freeing up money for religious purposes is not unconstitutional. There is no possibility in the Trinity Lutheran case of money given by the state being diverted to religious purposes, or purposes other than that for which it was intended. He emphasized that the state program was a program for everyone, and that exclusion of religious groups from all government benefits is a possible result if the state wins. “Will the government treat religious schools worse?” – Cortman asked. Marshall responded that equal protection (guaranteed by the Fourteenth Amendment, and the ultimate source of civil rights law) should not be used to protect churches and religious organizations, as seemed to be implied by Cortman’s appeal to the unequal treatment of churches. But Cortman maintained that the disfavoring of religion in court decisions of recent decades is resulting in the exclusion of religion from society, and that this is wrong.

The last point is well taken. Religion is supposed to provide meaning and value to life, yet in the years since the Everson decision (1947) said that the state may not “aid” either a particular religion or “all religion,” religious belief and practice has been increasingly removed from mainstream American life, in the elimination of school prayer, religious displays on public property, and religious motivation in law (even though non-religious motivations, such as environmentalism, may be held just as dogmatically, and the state cannot know that nontranscendent sources of knowledge are any more proper than transcendent sources). Given that on the hottest of public topics, homosexuality and gender identity, the Supreme Court has simply excluded (and bitterly attacked) religious motivation in law, and with the fierce anti-religious and anti-Christian polemic of influential parts of our society to which the Supreme Court responds, a future turn against religious liberty may make earlier court decisions that are in fact hostile to religious belief and practice seem moderate. In this regard, it was noted that the Supreme Court agreed to hear the Trinity Lutheran case when Associate Justice Antonin Scalia was on the bench. This provided a point of consideration for the next panel, to be reviewed in a subsequent article.

  1. Comment by Steve Heyduck on September 27, 2016 at 10:15 pm

    simple answer to your titular question is “no.”

  2. Comment by Rook on September 27, 2016 at 10:18 pm

    The liberal, post-Christian, world-conforming churches need never fear martyrdom. They always take the side of the secular elites.

  3. Comment by Blue J on September 27, 2016 at 10:34 pm

    ADF is such a great group. Unlike the vile ACLU, ADF really is true to its name.

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