Wednesday, April 19, 2017

Government funding and the DMZ of religious organizations

What we have in the non-profit space right now is an unfair playing field. Two organizations can be feeding the homeless, or caring for children, or any other manner of charitable acts and the one that is secular can receive funding and the religious organization is forbidden from being helped. Certainly some groups will get around this by promising to not "be religious" when offering services, but that doesn't detract from their central argument: Government shouldn't get involved in religion even when religious people are doing things for the betterment of their communities.

So it's interesting to see the Supreme Court take on what is effectively a silencing of religious organizations by siding with secular agencies when it's time to fund programs.

(Washington Post) - Supreme Court justices on Wednesday seemed sympathetic to a Missouri church that claimed its exclusion from a state playground improvement program was a violation of constitutional rights.

Even some of the court’s liberal justices expressed concern that the state had drawn too hard of a line in barring a day-care and preschool site from the program simply because it is controlled by a church, Trinity Lutheran in Columbia.

“You’re depriving one set of actors from being able to compete in the same way everybody else can compete, because of their religious identification,” Justice Elena Kagan told a lawyer for the state. In such a case, she said, the state’s interests “have to rise to an extremely high level.”

Missouri’s state constitution, similar to those of a majority of states, directs that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

That should mean the state should not be forced to write out a check to “Trinity Lutheran Church,” said James R. Layton, a Jefferson City lawyer representing the state.

But he seemed to face an uphill battle in defending the exclusion of church groups from a program with only a secular goal — making playgrounds safer — and for which Trinity would have been otherwise approved.

The hour-long argument suggested justices could coalesce around a narrow ruling that would affect programs that are generally applicable to the public, provide only secular benefits promoting health and safety, and perhaps forbid religious discrimination, which was raised as a concern by some justices but was not an issue in Trinity’s case.

The case has been complicated by an announcement last week by the state’s new Republican governor, Eric Greitens, that he was reversing the policy that denied Trinity’s application in 2012 and that churches will be eligible to participate.

But attorneys for both sides told the court that Greitens’s actions did not make the case moot, because the policy could be changed again in the future. Justices spent little time on that issue and more on the merits of the arguments.
The justices’ latest examination of religious liberty bumping up against the Constitution’s prohibition of government endorsement of religion comes as the court seems increasingly protective of religious plaintiffs.

It could provide a quick test of whether Justice Neil M. Gorsuch will, as expected, follow in the footsteps of the man he recently replaced, Justice Antonin Scalia.

There was no sign that the court’s conservatives would side with the state.

Chief Justice John G. Roberts Jr. was a tough questioner of Layton, and Justice Samuel A. Alito Jr. pointed out a number of federal programs that allowed government funding for safety and protection of churches, synagogues and mosques.

Gorsuch said the one thing that everyone in the case agrees upon is that the church was subject to discrimination by being told it could not participate in the program, which reimburses those that resurface their playgrounds through a state program that recycles old tires.

David A. Cortman of the conservative legal group Alliance Defending Freedom, which is representing the church, said the secular nature of the program should make it an easier case for the court.

But Justice Sonia Sotomayor took exception to Cortman’s argument that Missouri’s program interfered with the right to free religious exercise.

That confuses granting money with policies that hinder religious rights, she said. “They’re just saying, ‘We don’t want to be involved with the church,’ ” she said.

Justice Ruth Bader Ginsburg noted that Trinity said it does not discriminate among the students it accepts. But, she asked, what about a case in which a church school prioritized among Lutherans, then other Protestants, then perhaps Jews? Should public money go for that?

But Kagan and the other liberal justice, Stephen G. Breyer, seemed sympathetic to the church. If Missouri’s prohibition was taken further, Breyer said, it could refuse to provide police and fire protection to churches, he said.


  1. This is an interesting case, but the arguments for Trinity Lutheran fly in the face of arguments in other religious liberty cases with which I tend to agree. I want, maybe even demand, recognition of my free exercise of religion outside of the nave of the church. My free exercise includes almsgiving (e.g. religiously affiliated hospitals or homeless shelters) witness (e.g. choosing carefully the social occasions I am involved in by not providing services to weddings I cannot endorse,) protection of life (e.g. opposing abortion, euthanasia and death sentences,) and other practices in life. It is pretty hard to argue that my faith extends outside of the worship experience and teaching I choose to hear while arguing that a clear exercise of my faith has only a secular purpose. Although the discrimination against churches when the state is addressing a general interest is hard to accept, I would hate to reinforce the opinions that freedom of religious exercise exclude all expressions in the secular sphere.