In the Battle for the Wall of Separation between Church and State the Supreme Court Now has a Wrecking Ball

The Trinity Lutheran v. Comer Supreme Court decision has unfortunately not received the attention it deserves. This is partly a result of the distractions of the all-consuming Trump show, and partly because it was portrayed in the media as a limited decision of little importance beyond the specific case. However, the accompanying footnote that supposedly limited the decision was rejected by three of the seven (Chief Justice Roberts, and Justices Thomas and Gorsuch) who signed onto the decision. More significantly, the principle established by this ruling cannot, legitimately at least, be limited to this specific case. If their rulings are to mean anything, the Supreme Court must be guided by a set of principles which they apply consistently, rather than by arbitrary, ad hoc decisions. Sotomayor, writing for the minority (herself and Justice Ginsburg), clearly understands the implications: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.” And what makes this case of such great consequence is that it “is about nothing less than the relationship between religious institutions and the civil government–that is, between church and state.” (see entire ruling here)

The U.S. Supreme Court 2017

The radical nature of this decision is best illustrated by this statement made by Chief Justice Roberts, writing for the majority: “Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” What he is saying is that the decision made by Missouri’s Department of Natural Resources to deny a religious institution a grant paid for with public monies for constitutional reasons is discrimination against a church because of its religious status. This is stunning! Religion is THE thing called out by both the Missouri state constitution and the U.S. Constitution for special treatment. Of course, Roberts knows exactly what he is doing. Conservatives have long dreamed of dismantling the wall of separation of church and state. With the Supreme Court’s help, they have been dismantling it brick by brick, but the pace of destruction has accelerated. Now, with the principles established by the Trinity Lutheran ruling, they have a wrecking ball.

While radical in its scope this ruling is a continuation of the conservative push to emasculate the Establishment Clause while bolstering free exercise rights. To conclude that the state of Missouri violated the Free Exercise Clause by denying the grant to the church “solely because of their religious character,” Roberts needed to brush aside the constitutional prohibitions of both the Missouri State Constitution (“no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof”) and the U.S. Constitution’s Establishment Clause (Congress shall make no law respecting an establishment of religion”). According to Roberts, these seemingly clear prohibitions against public funding of religion were outweighed by the more substantial claims of the church to freely practice its religion.

Under the rules of strict scrutiny he dismisses Missouri’s state disestablishment requirement by insisting that the state’s “religious establishment concerns” were not a sufficiently “compelling” state interest. This flippant attitude towards something (the disestablishment of religion) which the religious dissenters fought so hard to achieve at this nation’s founding is astonishing. It shows a complete disregard for the protections which the “no establishment” principle provides for the rights of conscience. (see What the Religious Right Gets Wrong About Religious Freedom)

His disdain for establishment limits is also apparent in his treatment of the Establishment Clause. Roberts barely finds it necessary to explain its irrelevance. Ironically, it is the landmark Everson case that erected “the wall of separation” which provides the workaround. While Everson had generally set the precedent for a “high and impenetrable” wall between church and state, it also unwittingly provided the means with which to dismantle the wall. By ruling that the public funding of bus transportation to Catholic schools did not violate the Establishment Cause, the Everson majority established a precedent that ran contrary to its “high and impenetrable wall” metaphor. The glaring contradiction between the principle of separation and the green light given to the public funding of transportation to a private religious school did not go unnoticed. Justice Jackson, writing one of the minority opinions, highlighted the fact that “the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters.” The implications of the incongruous Everson opinion were not lost on the four dissenting Justices.

The logic that prompted the usually discerning Justice Hugo Black to rule as he did was the idea that the bus services for school children were “public services,” such as police and fire protections, that do not fall under the rubric of impermissible religion-state entanglements. This same logic also underlies the Trinity decision, and convinced Justice Breyer to join the conservative majority. But the analogy is false, as Justice Jackson indicated when Justice Black first proposed it: “A policeman protects a Catholic, of course, — but not because he is a Catholic; it is because he is a man, and a member of our society. The fireman protects the Church school – but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid, ‘is this man or building identified with the Catholic church?’” State-funded transportation to a religious school is not like the vital services of police and fire protection.

Even more problematic was the distinction between the secular and religious functions of religious institutions, as Justice Rutledge in a separate dissenting opinion pointed out: “Payment of transportation is no more, nor is it any the less, essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment, and necessary materials.” In other words, supporting the secular aspects of a religious institution is no different than supporting its religious purposes. Sotomayor, in Trinity, also highlighted the flaw in this thinking: “The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

Despite such flawed thinking the Roberts Court finds the Everson precedent useful in brushing aside the Establishment Clause. Sotomayor rightly scolds the majority for this astonishing break from the past, which “slights both our precedents and our history.” It “slights” history because public funding of religion was nearly universally rejected early in our history. In regards to precedents, the Trinity case is the first time the Court has approved direct public funding of religion without any “assurances that public funds would not be used for religious activity, despite the religious nature of the institution.” As problematic as these earlier precedents are, they were the precedents that should have guided the Trinity case. Instead, Roberts decided to push the envelope and approve the direct public funding of religion with no limits except in cases where the state can prove it has a compelling “state interest ‘of the highest order.’”

With all establishment concerns dismissed, Roberts can now turn to the Free Exercise Clause which forms the basis of his decision in favor of Trinity Lutheran Church. Roberts insists that the state’s discriminatory act “impose[d] a penalty on the free exercise of religion” of the church, thereby violating the Free Exercise Clause. Here, his case turns on the charge of “discrimination.” By denying the grant to the church’s learning center the state discriminated against the church “solely because it is a church.” Notice his slide from a constitutional mandate to “discriminate” (i.e. to treat differently) against religion and turned it into an act of illegitimate “discrimination” made on the basis of prejudice or hostility. A review of the precedents used by Roberts may help illustrate how he turned Missouri’s legitimate action into a case of unconstitutional “discrimination.”

In 1993 the Supreme Court (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) found a series of laws passed by the city of Hialeah unconstitutional because they were neither “neutral” nor “generally applicable” laws. These laws were clearly an attempt by the city to prevent the members of the Santeria religion from sacrificing animals, which were an essential part of their religious ceremonies. This is clearly a case of religious discrimination, but is this the same kind of discrimination as that found in the Trinity case? Notice that the city of Hialeah was singling out a particular religion, whereas the state of Missouri was acting in compliance with a constitutional prohibition against all religions. The Trinity Lutheran Church in Missouri was not singled out, or denied, out of any hostility towards Lutheranism. Therefore, this case does not provide the precedent he needs to charge the state with “discrimination” against religion itself.

Another precedent provided by Roberts illustrates the same kind of deceptive maneuvering. In McDaniel v. Paty (1978) the Court struck down a Tennessee law that forbade ministers from participating as delegates in the state’s constitutional convention. Roberts characterizes this case as one representing discrimination against the “religious identity” of the ministers. The problem with this conclusion is that the exclusion was made on the basis of occupation, not “religious identity.” If the state had made a prohibition against anyone with a “religious identity” there would have then been a very small pool of qualified candidates for the convention. In addition, the constitutional ban against the clergy was enacted in order to prevent any potential church-state entanglements that might take them back down the road to ecclesiastical tyranny. Tennessee was not the only state to enact such laws, and the vast majority of those who supported this kind of ban were deeply religious. They were trying to protect both religion and government, thus they were clearly not doing it out of any kind of animosity towards religion. Once again, this precedent doesn’t provide the needed constitutional basis with which to charge Missouri with discrimination against religion itself.

To bring his point home Roberts includes a quote from H.M. Brackenridge’s 1818 speech in defense of a bill that would have allowed Jews to serve in public offices in Maryland:

If, on account of my religious faith, I am subjected to disqualifications, from which others are free…I cannot but consider myself a persecuted man…An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture. (1)

Brackenridge, who was not a Jew, was not complaining about a general ban on “religious faith” as it might appear based on this out of context quote. Instead, he was protesting against the unjust exclusion of members of a particular religion (Judaism) from holding public office. The religious test in Maryland was not a discriminatory ban against religion, it was discriminatory against Jews and all other non-Christians. Here again we see another attempt to equate prejudicially-motivated discrimination with actions made in compliance with the constitutional mandates of Missouri state and U.S. Constitutions. This unjustified move was called out by Sotomayor, who reminded the majority that “in this area of law, a decision to treat entities different based on distinctions that the RCs [Religion Clauses] make relevant does not amount to discrimination.”

This ruling has taken a constitutional state action and turned it into a case about discrimination against religion. This is partly because Roberts, like other conservatives, believes that the separation principle is itself a form of hostility to religion. They forget that the disestablishment of religion was essential to protecting not just their religious liberty but also religion itself. (see What the Religious Right Gets Wrong About Religious Freedom) Justice Jackson’s charge against the majority in Everson applies more aptly to the Trinity case: “the Court today is unconsciously giving the clock’s hands a backward turn.”

Notes:

  1. For more information on this “Jew Bill” see E. Milton Altfeld, The Jew’s Struggle for Religious and Civil Liberty in Maryland (Baltimore: M. Curlander, 1924), 110.
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