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It was a less flashy decision than the Supreme Court decision to allow parts of President Trump’s travel restriction to stand. But the decision in Trinity Lutheran Church v. Comer was important too, as a victory for religious liberty.
Let’s briefly review the case.
In 2012, Trinity Lutheran Church in Columbia, MO, applied to the Playground Scrap Tire Surface Material Grant Program. The state of Missouri sponsored the program for nonprofits to use scrap tires to cover playgrounds, and the church was invited to participate. Consequently, the church thought its daycare might benefit from having a safer surface for its little charges to play on.
Trinity ranked near the top of the nonprofits that had applied for the grant. However, their hopes for a safer playground came crashing down, thanks to the Missouri Department of Natural Resources. They determined that the preschool was ineligible. Why? Because a church operated the preschool. Only the knees of secular children would be eligible for protection, apparently.
The state’s basis for discrimination stems from a bit of nasty religious bigotry embedded in its state constitution. That constitution relies on the wording of the Blaine Amendment, which was named for Rep. James Blaine. Blaine was the 1884 Republican presidential candidate, the speaker of the House, and a notorious anti-Catholic. Bitterly opposed to Catholic immigrants and the parochial schools they founded, Blaine tried in 1875 to amend the U.S. Constitution with a stipulation that no state money could go to schools “under the control of any religious sect.” The constitutional amendment failed, of course, but 37 states decided to adopt it. One of them was Missouri, which enacted its state constitution in — surprise! 1875.
But the Supreme Court decided in favor of Trinity Lutheran Church and the little knees of their preschoolers. Moreover, the ruling was 7-2, which is not narrow. Chief Justice John Roberts wrote for the majority:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But 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 all the same, and cannot stand.
Are you wondering with which side the new Justice, Neil Gorsuch, joined? As you might have guessed, he joined with the majority opinion. He wrote:
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). . . And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”. . Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. . . I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.
I appreciate the fact that Justice Gorsuch supports free exercise of religion, not just free exercise of worship. Perhaps relief will be coming the way of religious people who refuse to bow to social justice activists eager to destroy their lives and businesses over things like wedding cakes.
GWB says: The interesting part, imo, is that Blaine Amendments aren’t really a terrible thing. At least, as long as the gov’t is remaining within very restrictive bounds on what it gets its fingers into.
When you have a very limited gov’t scope – roads, police, maybe a city concert hall, a post office, gov’t buildings – then not giving money to any religious group/institution is ok. Because you’re not giving money to other groups, either. It’s basically irrelevant in that case.
Once the gov’t starts giving OPM to folks – a boy scout troop here, a Rotary club there, preschools, business tax breaks, etc. – it can’t deny someone just on the basis of the fact that they practice a religion.
And, of course, you have the sociological problem that everyone practices a religion. Secularism is a religion. “Scientism” or “Reason” is a religion. Atheism is a religion. So, anything you fund is religious in nature. To think otherwise is to have a very faith-based confidence in your own worldview.
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