We’re losing the fire of our Founders on church-state separation

By Ken Burrows

When the Supreme Court of the U.S. (SCOTUS) on June 26th ruled 7-2 that it was unconstitutional to exclude Trinity Lutheran Church from being eligible for public funding of its playground surface improvements, the church-state separation wall did not collapse, but it took a hit. Chief Justice John Roberts limited the damage somewhat by stating in his majority opinion that “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

So the ruling in Trinity Lutheran Church of Columbia v. Comer is quite narrow in the overall church-state arena. However, there is much about the ruling, especially its judicial reasoning, that points to signs SCOTUS is distancing itself from the resolute positions our Founders held on church-state separation. Justice Roberts rather sarcastically observed that Missouri’s rationale for denying Trinity Church access to state grant monies was due more or less to its “preference for skating as far as possible from religious establishment concerns.” But what his opinion language encompassed came close to the opposite—that is, the Court’s preference for skating as close as possible to crossing the line separating church and state. Seven justices were far less committed to preserving that line than our Founders were.

Trinity had brought action against Missouri officials for rejecting the church’s application for a state program grant to resurface its church-owned playground with rubber mesh materials. The resurfacing was intended to reduce injuries to children using the playground. The state based its denial of Trinity’s $20,000 grant application on language in the state constitution that prohibits public funds from flowing to churches and other religious concerns, including properties owned and run by a church, such as the playground in this case. The actual language in that state constitution reads: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”


Federal vs. state separation

Both sides in the Trinity case actually agreed the U.S. Constitution did not prevent Missouri from making a grant to Trinity. The pertinent question to be decided by SCOTUS was: Can a state demand a more stringent separation of church and state than the U.S. Constitution requires? Can a generally available public benefit (like the playground resurfacing grant in this case) be denied to an applicant solely because the applicant is a religious entity?

Because the funds in question would have gone to playground resurfacing, Trinity and its supporters contended this was a “religiously neutral” purpose (i.e., not actually an aid to a “church” or “religion.”) Based on that, the church claimed that solely on the basis of its religious beliefs, it was being denied a benefit it was otherwise legally and equally entitled to. They argued the state was abridging Trinity’s First Amendment right to the “free exercise” of religion and denying the 14th Amendment guarantee of “equal protection of the laws.” The SCOTUS majority agreed Trinity’s free exercise of religion was “burdened,” and hence their ruling. But dissenting Justice Sonia Sotomayor presented an extensive rebuttal, raising church-state issues that went unaddressed by the majority. More on the specifics of this below.


The Blaine background and brouhaha

By way of background, the state constitutional language on which Missouri based its grant denial is commonly known as a Blaine Amendment. Three-fourths of states in the U.S. have similar language in their constitutions, including Colorado. Such amendments trace their origin to the 1870s, when U.S. Rep. James Blaine, a Maine Republican, was angling for his party’s nomination for president. The general historic consensus is that Blaine tried to capitalize on an anti-immigrant mood at the time by proposing an amendment to the U.S. Constitution to prevent taxpayer dollars from going to Catholic schools that immigrants were establishing for their children, as well as other religious concerns that were making the predominant Protestant population uneasy. The U.S. Senate rejected Blaine’s attempt at a federal amendment, but then states rights advocates, again playing on the anti-immigrant mood, succeeded in enacting Blaine-like amendments in their own state constitutions. The wave of such enactments became widespread, and its legacy continues to today.

Both before and after the SCOTUS Trinity ruling, the matter of such Blaine amendments has elicited widespread commentary, much of it overly simplistic and in some cases hyperbolic. The case has frequently become a call for invalidating all Blaine amendments in toto, never mind that such amendments do encompass church-state separation principles that were sacred to our Founders. Sources ranging from national columnists like George Will to the local editorial viewpoint of the Gazette resorted to sarcastic minimalizing to describe the Trinity case not as a bona fide church-state matter but as a callous disregard for kids’ injured knees (sustained on the playground to be resurfaced, you see) resulting from a presumed animus to religion in general that has survived down through the years from Senator Blaine’s days.

For instance, columnist Will quoted an attorney in support of Trinity as saying a rubberized playground cannot advance religion and said Trinity’s religious status has no relevance to the state program’s purpose “which pertains to knees.” The Gazette said the case is merely about pea gravel and deals with “a dilemma we should not face in civilized times.” (Speaking of hyperbole.)

Without fail, every Blaine amendment critic points to the anti-immigrant/anti-Catholic genesis of the amendments, often adding that these amendments were also favored by the Ku Klux Klan. All of which may be true, but all of which suffer the illogic of ad hominem argument: i.e., the amendments are bad not because of their literal content but because the guy who first proposed them was badly motivated. The more relevant and operative question to be addressed is: Regardless of how they originally came about, do the Blaine amendments retain any validity for today?


Consistent with Jefferson and Madison

Advocates of originalism, who claim to be faithful to our Founders’ original meanings and intents, might begin by asking what the Founders likely would have said of such amendments. Let’s look at the actual language. Colorado’s Blaine amendment, included in the state constitution of 1876, states: “Neither the general assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or monies whatever, anything in aid of any church or sectarian society, or for any sectarian purpose…”

Now consider that Thomas Jefferson, in his 1786 Virginia Statute for Religious Freedom, wrote: “…to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical… Be it therefore enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever…”

One cannot help but note that the similar aim in both of these measures is to prevent the general public as a whole from having to underwrite religious institutions, beliefs or practices, regardless of whether they agree with them or not. Even the Gazette itself has more than once editorially insisted that government “should neither encourage nor discourage religious beliefs.” (Editorial published 11/27/2016)


Where to draw the line?

Jay Wexler, a former clerk for Supreme Court Justice Ruth Bader Ginsburg and teacher at the Boston University School of Law, noted in a 2009 anthology of selected church-state controversies that one of the points James Madison made in his Memorial and Remonstrance Against Religious Assessments is that small breaches of the no-funding principle can lead to more substantial funding in the future. He quoted Madison thus: “Who cannot see that…the authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” (Madison’s Remonstrance was a 15-point rebuttal to Patrick Henry’s proposal to tax citizens to fund paying teachers of Christian religion.)

Wexler observed: “You see the problem. Once you concede that the state has to be able to give some incidental financial support to religion, it becomes kind of difficult to say how much support is too much. Where, in other words, should the Court draw the line?” He added: “Why should a Jew have to pay taxes to support Catholicism, or an atheist have to contribute to the growth of Islam?”


Interpretation is key

The history of court cases dealing with issues similar to those in the Trinity case is varied and marked by ambiguities and inconsistencies. Paying for bus transportation to get kids to religious schools gets an okay at one point, but publicly funding bus transportation for religious school field trips is ruled not okay. The Court said at one point that public funds given to schools could not constitutionally be used to promote religion, but on another occasion ruled that publicly providing computers was okay, even though it was inevitable these would be used in some measure to teach religion. The Court has also made distinctions based on whether public funds go directly to a religious school or instead go to parents of school children by way of vouchers, even though such voucher funds ultimately end up in the hands of the religious schools the parents overwhelmingly select through such voucher programs. Suffice it to say the proverbial “bright lines” between what’s allowed and what isn’t are not immediately apparent in the history of cases on the matter of public money being used to promote religion, especially through schools.

The ambiguities in the Court decision history lead one to conclude that the key problem with Blaine amendments is not so much that their proscription on public support of religion is wrong (our Founders would say it’s not) but rather that the proscription is subject to wrong interpretation in a given set of circumstances. It seems imperative that a key point of distinction has to be whether the public money is supporting a non-religious public service (municipal fire and police services provided to a church or religious school being an obvious example) or whether such public money is advancing religion.


Differences among Supremes’ views

This is precisely where the seven majority justices in Trinity part ways with the two dissenters (Ruth Bader Ginsburg joined Sotomayor in dissent). They part ways not only in assessing the merits of the Trinity case but also in how much heed they pay to our Founders’ fervor for keeping church and state separate.

A rational argument could be offered that Missouri erred in denying Trinity Lutheran a grant for playground resurfacing of its Learning Center, if one assumes resurfacing a playground does not directly encourage or support religion. Yet one could also make an argument that it indirectly or incidentally supports religion, since the school is run by a church. It’s also true that the church may very well use the playground on occasion for activities that do promote religion.

Indeed, in her dissent Justice Sotomayor pointed to Trinity Church’s own language that says their Learning Center serves as “a ministry of the Church and incorporates daily religion” in its programs. Further, Trinity asserts that “through the Learning Center the Church teaches a Christian world view to children.”

Sotomayor argued the playground surface cannot be confined to strictly secular use, saying it is inescapable that the funding Trinity seeks “would impermissibly advance religion.” She went on: “Properly understood then, this is a case about whether Missouri can decline to fund improvements to the facilities the Church uses to practice and spread religious views. This Court has repeatedly warned that funding of exactly this kind—payments from the government to a house of worship—would cross the line drawn by the Establishment Clause.” She went on to note that while SCOTUS has in the past found some government funding of religious institutions to be consistent with the Establishment Clause, “the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution.”

In fact, the Scrap Tire Program under which Trinity sought its grant required an applicant to certify that its mission and activities are secular and that it will put program funds to only a secular use. Sotomayor said the record is unclear whether Trinity Church provided such certification and the church “has not offered any such assurances to this Court.” She additionally noted that the Scrap Tire Program ranked grant applicants more highly if they agreed to generate media exposure for Missouri and its recycling program. In other words, advertise that the government has funded it. She called this the type of “entanglement with, and endorsement of, religion the Establishment Clause guards against.”


Church-state implications given short shrift

So how did the majority in Trinity come to the conclusion it did? Mostly by ignoring the probable religious use of the playground whose resurfacing the state grant would fund, and by a decidedly lower sensitivity to potential breaches in the church-state wall that the Trinity case represented. One of the overriding, repeated contentions in Justice Roberts’ opinion is that Trinity Church was being shut out of a generally available public benefit solely due to its “status,” “identity” and “character” as a religious entity. As opposed to being due to its actions. He wrote: “This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” [italics added]

The opinion several times cites the case of McDaniel v. Paty, which struck down a Tennessee statute disqualifying ministers from serving as delegates to the state’s constitutional convention. Roberts said the Court concluded McDaniel was discriminated against “solely because of his status as a minister.” [italics added] He continues this judicial line of thought by rejecting Missouri’s argument that the Trinity case should be controlled by Locke v. Davey, in which the state of Washington denied scholarship funds to Davey because he refused to affirm he would not use the funds to be trained as a clergyman, which the Court in that case called an “essentially religious endeavor.” “Davey was not denied a scholarship because of who he was,” Roberts writes. “He was denied a scholarship because of what he proposed to do.” [italics in original]

So it would seem the majority is distinguishing between religious status or identity and religious actions in determining whether free exercise of religion is being unconstitutionally burdened when a religious entity is denied a public benefit. Exclusion based on the former (identity) is a burden and not permissible, but exclusion based on the latter (actions) can presumably be allowed under certain circumstances (as happened in Locke v. Davey). But at the same time it also appears the majority either never considered, or deemed irrelevant, the likelihood that Trinity Church would use its state-supported playground for religious purposes, even though this would fall under actions and not just be a matter of identity. 


Gorsuch goes further

In a disturbing concurrence, Justice Neil Gorsuch suggests that even actions should pose no constitutional problem. He claims to “harbor doubts about the stability of a line” between religious status and religious use. He writes that the free exercise clause guarantees free exercise of religion, not just the right to belief. He essentially says religious actions should enjoy the same wide-berth accommodation as religious belief. This differs from a key premise in Roberts’ opinion and further invites breaching of the church-state wall. (The implications of this sort of judicial thinking on the Court’s upcoming case involving a wedding cake baker’s religiously based discriminatory actions against a gay couple are ominous, to say the least.)

Sotomayor assails such thinking in her dissent when she writes: “At bottom the Court creates the following rule today: The government may draw lines on the basis of religious status to grant a benefit to religious persons and entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

“A state’s decision not to fund houses of worship does not disfavor religion,” she writes. “Rather it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.”


The issue calls for careful thought

The majority justices appeared to be much less attuned to the perils of church-state entanglement than Founders like Madison and Jefferson were. Their openness to accommodating Trinity despite the uncertain church-state ramifications hardly squares with Madison’s insistence that “religion and government will both exist in greater purity the less they are mixed together.”

This is why the matter warrants careful thought and is ill-served by facile all-or-nothing judgment. Whatever the merits of an individual case may be (Trinity’s mixing of playground and church makes for some gray area to judge), advocating a wholesale repeal of Blaine-style limitations is equivalent to saying they contain no valid principles. In fact, however, they do. These amendments have been cited in many cases to prevent diverting public money to aid religion and/or to head off other unconstitutional entanglements of government and religion. Doing away with them would almost certainly lead to an avalanche of efforts to direct public monies to religious entities, something many fear, all the more so after the Trinity ruling. This would unquestionably contradict the Founders’ intents.

Besides Jefferson’s Virginia Statute opinion noted earlier in this article, the Constitution’s chief draftsman, James Madison, wrote in a post-presidency Detached Memorandum: “If religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries as well as their constituents should discharge their religious duties, let them like their constituents do so at their own expense.” In other words, religions and their adherents should support their sectarian activities, which encompasses religious schools and teaching, on their own without public funding.

Wexler noted in his anthology of church-state cases that when Justice Sandra Day O’Connor retired and was replaced by Samuel Alito, the Court tilted much more toward allowing religious groups to use public funds to promote religion. Now the addition of Neil Gorsuch intensifies such a tilt, because he is, like Antonin Scalia before him, too often oblivious to our Founders’ intents when it comes to keeping church and state separate. His “originalist” light dims nearly to darkness on this issue.


Losing the Founders’ fire

The Trinity ruling and its dissent show, at a minimum, that Sotomayor and Ginsburg stand out as a minority in being much more willing to engage our history in detail and being more aware of what that history contains. They are the originalists on this case. Their colleagues’ trending away from such purposeful originalism on government-religion relations should give pause to anyone valuing our history and founding principles. The Founders were fiery on church-state separation for their own experiential and aspirational reasons. They were committed to leaving behind the well known evils of civic-ecclesiastical entanglements and committed to creating a truly revolutionary alternative to that linkage by explicitly separating church and state.

Sotomayor affirmed her judicial devotion to this alternative vision when she wrote: “History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government.” She was effectively channeling Madison, who wrote in an 1822 letter that any coalition of religion and government has a tendency to corrupt both. “The danger cannot be too carefully guarded against,” he wrote, and “every new and successful example therefore of a perfect separation between ecclesiastical and civil matters is of importance.”

Sotomayor contended that the Court in Trinity was blind to this history, profoundly changing the relationship between religious institutions and government in a way that “slights both our precedents and our history.” She insisted the Court’s reasoning weakens this country’s longstanding commitment to a separation of church and state, a concept the Founders fought for tirelessly. The Court in Trinity, she concluded, leads to a place “where separation of church and state is a constitutional slogan, not a constitutional commitment.”

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