I have a confession to make. Reading the US Supreme Court’s ruling on Trinity Lutheran Church vs Comer, I am more persuaded by the majority decision written by Chief Justice Roberts than by Justice Sotomayor’s dissent. In this I differ from many secular campaign groups who deplore the ruling and are worried about what it might lead to.
In brief, Missouri runs a program using old tyres to improve children’s playgrounds. Trinity Lutheran Church asked to benefit from this. Their bid was rejected because it came from a church, in line with Missouri’s rule that no taxpayers’ money can go to a church. The Supreme Court ruled 7–2 that rejecting the bid simply because it came from a church violated the constitutional ban on laws “… prohibiting the free exercise” of religion. Sotomayor’s dissent, in contrast, focused on the other half of that clause, banning laws “respecting an establishment of religion”.
The two phrases together are commonly interpreted as erecting Jefferson’s “wall of separation” between churches and the government, preventing taxpayers money from going to churches and preventing the government from taxing churches.
But I think that another metaphor sums up religious freedom better, that of government blindness to religion. The government must be blind to religion, it cannot act with religious or anti-religious motive, it cannot favour religion, and it cannot disfavour religion.
Indeed, Jefferson also insisted (added emphasis):
“… that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities”.
The Missouri program was open to bids from private schools and private day-care centers; the program had no religious intent, it was about recycling tyres and improving playgrounds. The fact that in one case the benefit would go to a day-care center run by a church is incidental. If that church were disqualified merely for being religious then their “civil capacities” would thereby have been “diminished”.
If a generally open program is off-limits to religious groups, but only to religious groups, then that seems a wrongful limitation of free exercise. I side with the majority ruling. The state of Missouri should have simply been blind to the religious nature of that applicant.
Equally, by this doctrine, however, religious institutions should not be exempted from taxation just because they are religious. They should be treated as any other private body.
Justice Sotomayor dissented from the ruling, expressing concern that the granting of money to a church would violate the “establishment of religion” clause, and citing a vast number of precedents where the funding of churches had been prohibited.
Yes, the grant would benefit a church, but that was not the intent of the program, and that is very different from establishing a program whose intent is to benefit a church (as in most of Sotomayor’s precedents).
The Establishment Clause is often expounded as the Lemon Test (which Sotomayor did not address directly in her dissent). The three-pronged test requires that: (1) a statute or government action must have a secular purpose (clearly the Missouri program did); (2) the principal or primary effect of the statute must not advance nor inhibit religion (any benefit to a church from the Missouri playground program was incidental, not a primary effect); and (3) the statute must not result in an “excessive government entanglement” with religion.
The third is the only one that the Missouri program could violate, but does a religion-blind policy where a religious institution could participate on equal terms with other private institutions really amount to “excessive entanglement”? Isn’t it just neutrality?
Sotomayor makes issue of the fact that Trinity Lutheran had not promised that it would not use the grant money for proselytising, instead of improving the playground, but presumably it would have done so if asked. Even as staunchly secular as I am, I could not find myself persuaded by Sotomayor’s arguments.
The judgement itself is fairly narrowly written, explicitly saying that it is not about taxpayers’ money going to activity that is itself religious, though the worry is that it could set a precedent that leads in that direction.
Could this lead to the courts ruling that the taxpayer must fund private religious schools on equal terms with state-funded public schools? Well, if a state instituted an open program where they would fund any school ran by anyone without any limitation on how the school operated or what was taught, then likely, yes, because of “free exercise”, that would have to include religious schools.
But surely no state government would run such a program; it would always take an interest in the quality of education and the curriculum it was paying for. The requirements for that would have to be secular (any religious component in the specifications would violate all three prongs of the Lemon Test), and that would prevent the state from paying for religious instruction.
Yes it is a worry what a highly religious and partisan court might do in the future, but in Trinity Lutheran I feel they made the right ruling that is most in line with the secular principles of religious freedom and religious equality.
I hope I’m not letting the side down too badly!
Updates: The Secular Coalition for America have said that:
“By deciding that churches are eligible for public grants, the court has empowered government employees and state lawmakers to decide which religious institutions ought to receive taxpayer money. This is precisely the entanglement of religion and government that the wall of separation between church and state is intended to safeguard against.”
That’s not really true. The government employees and state lawmakers could use only secular criteria in deciding which (religious) institutions receive taxpayer money, so there is little “entanglement”.
“Without the protection of these no-aid clauses, taxpayers are now being forced to directly subsidize religious denominations they do not support.”
But only to the extent that the program already supports other private groups. As the ruling points out, religious denominations already get the benefit of taxpayer-funded roads, police, fire brigades, et cetera.
The Freedom From Religion Foundation argue that:
“It has been a bright line rule since America’s founding that the government will not fund religion or the free exercise of religion. Today, the Supreme Court destroyed that rule …”
Well no, the ruling doesn’t mean that the government can fund religion, it means that the government can fund secular activity done by religious people.
This is strange, I would normally agree entirely with the above organisations. Am I wrong here?