A Major Church-State Ruling That Shouldn’t Have Happened – The Atlantic

 In U.S.
Trinity Lutheran Church v. Comer, the church-state case decided by the Supreme Court Monday, is a truly hard case. I can think of good arguments for either side, and even better arguments why—since there was no remaining dispute between the actual parties—the court should have stayed out altogether.

The court waded in, alas. And the majority opinion, by Chief Justice John Roberts, and the dissent, by Justice Sonia Sotomayor, got the issue wrong.

In Trinity Lutheran, a church challenged the state of Missouri’s refusal to fund safety improvements at its daycare playground. In April 2017, however, the newly elected governor of Missouri ordered the state to grant the funding and not to enforce its no-churches funding rule. The church won what it wanted because the state decided to give it—this being, for any judges unclear on the concept, what is wistfully called “the political process” courts are supposed to support, not supplant.

Even after the fight ended, however, the Supreme Court insisted on deciding the no-longer-existent dispute. The resulting opinions illustrate the old adage that “if you don’t know where you’re going, when you get there, you’ll be lost.”

The issue in Trinity Lutheran is whether the Constitution requires that the church, located in Columbia, Missouri, be eligible for a state grant program that pays for non-profit organizations to put down recycled-rubber-tire surfaces that prevent playground injuries. The church operates a daycare center. Its application for a state grant was strong; the state rejected it solely because the daycare is run by the church itself. That meant a grant would violate a provision of the Missouri state constitution that provides, “no money shall ever be taken from the public treasury… in aid of any church, sect, or denomination of religion…”

As someone who has spent nearly two decades studying church-state cases, I am frankly torn about this one. Denying playground surfacing to children based on the formalities of their daycare seems harsh; but constitutional micromanagement of state church-state relations has its own hazards.

To be clear: The rejection was not because the daycare was religious. Had it been operated by a separate religious non-profit with its own board (as it originally was) rather than directly being controlled by the church itself, it would almost certainly have been ruled eligible. (In 2007, the Missouri Supreme Court held that St. Louis University—founded by the Society of Jesus, with a Jesuit president, a Jesuit philosophy, and guaranteed Jesuit membership on its board—was not ineligible under the Missouri constitution: “Mere affiliation with a religion does not indicate that a higher education institution is ‘controlled by a religious creed’ for purposes of Missouri’s establishment clause,” the court said.)

But because the funds would flow directly into a church treasury and be spent by church officials, the grant would violate a widely held principle (as many as 38 states have similar language in their constitutions) against direct funding of churches and similar “houses of worship.”

All the parties agreed (though some others disagreed) that actually funding the playground would not violate the Constitution’s prohibition on “an establishment of religion.” The question was whether not funding the playground violated the church’s right to “the free exercise” of religion.

The chief justice painted a dramatic picture of the stakes. In his majority opinion, he compared the church’s plight to that of a 19th-century Marylander barred from public office because he was a Jew:  “If, on account of my religious faith, I am subjected to disqualifications from which others are free, [this is] a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”

Roberts did tersely admit that “Missouri’s Department of Natural Resources has not subjected anyone to chains or torture on account of religion.” But, he said, the grant rejection constitutes something similar—discrimination against the church because of its “religious identity.” Because it is such deadly discrimination, he wrote, a denial of general funding grants to a church requires “strict scrutiny”—the constitutional equivalent of a death sentence.

All very well, except the entire factual predicate is spurious. The grant denial is not because the church is “religious”—religious-based non-profits, as noted above, are eligible to apply for the grants. It is because Trinity Lutheran is a “church”—a particular kind of organizational status that brings with it an enormous number of advantages (Churches, for example, are permitted to discriminate in hiring and promotion on the basis of religion; churches do not pay taxes that other organizations do).

Since the time of the First Congress, the prohibition on “establishment” has been conceived of as preventing churches—or “houses of worship”—from receiving exactly that: direct payments of tax funds. For more than 200 years, states have tried to avoid establishment problems by drawing a strict line between state funds and church treasuries. It’s hard to find “chains and torture” in that history.

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