A nineteenth century relic of the long-running, but now passé, Protestant/Catholic conflict, retooled for use by secularists against religious organizations, may be on the chopping block at the Supreme Court this spring. At issue is the fate of many so-called “Blaine Amendments,” state constitutional amendments informally named after James G. Blaine, a nineteenth century Secretary of State and Republican presidential candidate in 1884, who unsuccessfully attempted to amend the U.S. Constitution to prohibit state aid to religious institutions. The current case involving Trinity Lutheran Church in Columbia, Missouri, concerns the State of Missouri’s denial to the church of an environmental award of funding to use recycled material from tires for the church’s school playground.
Discussing the current case which could impact these laws, Trinity Lutheran Church vs. Comer, at the Heritage Foundation on April 18 were Elizabeth Slattery of Heritage Foundation’s Meese Center for Legal and Judicial Studies, Jordan Lorence of the Alliance Defending Freedom, Hannah Smith of the Becket Fund for Religious Liberty, and Walter Weber of the American Center for Law and Justice.
Hannah Smith noted that the Blaine Amendments’ “discriminatory” history has been detailed in a number of cases argued before the U.S. Supreme Court. The objective of outlining this history is to “protect the right of religious-based organizations and individuals to be free from religious-based exclusion” that results from the Blaine amendments. While the Supreme Court has not declared Blaine amendments unconstitutional, it has held that, due to their anti-Catholic history, they “merit close scrutiny,” Smith said. They effectively prevent religious organizations at the state and local level from “partnering with the government to provide essential social service to people in need.” She said that the Becket Fund has filed numerous briefs in state and federal courts outlining the history of Blaine Amendments, their anti-Catholic origin and use, and the violence and hostile government actions perpetrated against Catholics in the nativist environment of nineteenth century America out of which the amendments emerged. A key motivation in the amendments, she said, was to ensure that the Protestant majority did not have to support, through government programs, schools or other institutions being built by the swelling Catholic immigrant populations.
Today these amendments are used by secularist activists to inhibit religious social service in the wider society. Smith pointed to the case of Center for Inquiry vs. Jones, in which an organization called Prisoners for Christ was working with the State of Florida on rehabilitation of prisoners re-entering society. Although the recidivism rate for persons using Prisoners for Christ’s services was far lower (10%) than those helped only by the state (70%), there was legal action against this partnership, relying on Florida’s Blaine amendment. In another case in Oklahoma, a Blaine amendment was used to attack the use of state scholarships for children with special needs at religiously affiliated schools, with two public school districts even suing their own students for accepting state aid. Highlighting anti-religious animosity, the Becket Fund was able to finally protect both state aid programs to the respective religious social services. In the Trinity Lutheran case, the same principle of equal access to state aid is at stake, with the religious nature of the service provider (a church) used to prevent a benefit to the public (a safe playground for children from the wider community in Columbia, Missouri).
Walter Weber reviewed the history of the Locke vs. Davey case (2004), similar to the current Trinity Lutheran case in that the issue concerned state aid to a religious program. Here the Supreme Court found that while the establishment clause of the Constitution does not forbid state aid to a program of theological studies, the free exercise clause does not require that aid be granted, even though it may given to other courses of study. But Weber said that ACLJ regarded the restriction of theological education as “viewpoint based,” clearly disadvantaging religious programs. Weber held that a positive result in the case was that the court, including its liberal justices, found that states could fund religious education, although they were not obligated to do so. But a difference between this and the Trinity Lutheran case, one that Webber believes may be important to the Supreme Court, is that the theological student who was denied aid, Joshua Davey, would have used state money for an “essentially religious endeavor,” whereas the rubber playground desired by Trinity Lutheran Church for its school does not involve religious activity, and would benefit many children who are not part of the church.
Jordan Lorence noted that the Trinity Lutheran case was granted review on January 15, 2016, but was delayed by the death of Associate Justice Antonin Scalia. He remarked that the current state of establishment clause jurisprudence results in this kind of case, in which religious organizations are excluded from government programs for no other reason than that they are religious. Trinity Lutheran Church met all secular criteria to receive the award for its playground, including public access to the playground, use for an educational program, and other criteria for a facility that would benefit children outside its own membership. While opponents of the grant point to the fact that it is “direct funding” of a church, Lorence said it is not discretionary money to be used for any purpose the church wishes, as might have been given to churches generations ago before the advent of strict separation of church and state. He also noted that the Employment Division vs. Smith case (1990), which reduced religious freedom by saying that the free exercise of religion is no defense against generally applicable law, also said that if religion is singled out for disfavor by law or public policy, this must be justified under the strict scrutiny of the courts. Lorence also noted that the state of Missouri has changed its policy of denying funding to religious groups in the future, but this does not affect the Trinity Lutheran case, which cannot be rendered moot in any case by a legal doctrine which forbids parties to a case from conceding defeat only as long as a case is active.
Galen Carey of the National Association of Evangelicals asked if litigants for Trinity Lutheran are hoping that the Supreme Court will overturn the Locke vs. Davey decision, or simply restrict it in some way. Lorence responded that he hoped that the court would reject the prima facie exclusion of religious groups from government programs. In answer to a question about the viewpoint on religious liberty of the new Supreme Court justice, Neil Gorsuch, Smith said that he has given very “robust” support for religious liberty in his decisions based on the Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).
In answer to another question about the views of Justice Anthony Kennedy, Lorence said that he would be the “key guy” in the decision. He said that Kennedy had been on “both sides” of the issue, and how the arguments made “strikes” him will be “determinative” of the outcome in the case.
It seems to this writer that Christians and other social conservatives must be cautious about focusing on animosity in matters of law and public policy, as seems to be done here. Democracy and limited government, as argued in earlier articles, are about accepting animosity as a perennial feature of law and society. But in matters of religious freedom, the free exercise of religion guaranteed by the Constitution would seem to mandate that the state be neutral about religion, and thus not disfavor religious organizations in state aid for essentially secular programs, as the Blaine amendments clearly do. It is to be hoped that the Supreme Court, perhaps even a unanimous court, will agree that religious organizations should not be excluded from state aid simply because they are religious.