Supreme Court chips away at wall between church and state -- June 29, 2017 column

By MARSHA MERCER

Does anybody want little kids to scrape their knees on the playground? Of course not.

Here’s a harder question: Should taxpayers pay to resurface a church playground to make it softer and safer – even if the state constitution explicitly prohibits spending public money “directly or indirectly, in aid of any church”?

Yes, the Supreme Court said Monday, raising cheers – and fears -- that the court is chipping away at the wall of separation between church and state.

While the federal government does fund faith-based social programs, it traditionally has steered clear of seeming to favor one religion over another.   

The court ruled 7 to 2 in Trinity Lutheran Church of Columbia, Missouri v. Comer that Missouri violated the First Amendment of the U.S. Constitution when it denied the church a public benefit purely on the basis of its religious status. 

Put another way: Churches have as much right as any other nonprofit to tap public funds.

  

The lopsided margin doesn’t reflect the differences in attitudes on the court, where justices went toe-to-toe over, well, a footnote. More on that shortly.

The court Tuesday returned four cases related to public funding for private and religious schools to state courts in Colorado and New Mexico, which also have constitutional restrictions against public funds for religious organizations.

Dozens of other states, including Virginia, have similar provisions.

Writing for the majority in the Trinity Lutheran case, Chief Justice John Roberts said it was “odious to our Constitution” for Missouri to exclude Trinity Lutheran Church from a public benefit “solely because it is a church.”

But in a blistering dissent, Justice Sonya Sotomayor wrote: “This case is about nothing less than the relationship between religious institutions and the civil government – that is, between church and state.

“The court profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” she wrote, joined by Justice Ruth Bader Ginsburg. Two other liberal-leaning justices sided with the Roberts majority.

In 2012, Trinity Lutheran, wanted to upgrade its pea gravel playground. It applied for a state grant from a program that reimburses the cost of installing a rubberized surface made of recycled tires. The church sought $20,000 for the $30,580 project.

The state denied the grant, citing the state constitution’s provision against using public funds to promote religious views, and the church went to court. The U.S. Court of Appeals for the 8^th Circuit affirmed a lower court’s decision, siding with the state.

Following the highest court’s ruling in favor of the church, advocates of school choice and vouchers for religious schools claimed victory.

“We fully expect to see governors and legislatures have renewed discussions about school choice programs in their states in light of this momentous decision,” Greg Block, executive director for the American Federation for Children, said in a statement.

But there was that curious, if non-binding, footnote.

“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,” Roberts wrote.

But Justices Neil Gorsuch and Clarence Thomas wrote they would not have limited the ruling to the playground or child safety. They favor expanding taxpayer funding for religious endeavors.

“The general principles here do not permit discrimination against religious exercise,” Gorsuch wrote, “whether on the playground or anywhere else.”

The court could have avoided the issue entirely. In April, before the court heard oral arguments, Missouri Gov. Eric Greitens, a Republican, changed state policy to allow churches to participate in the grant program.

Keeping public money and the collection plate separate is a valuable tradition that benefits both parties, say proponents of separation of church and state.

“This ruling undermines the bedrock principle that no American should be forced to support a religion against his or her will,” Barry Lynn, executive director of Americans United for Separation of Church and State, said in a statement.

That principle is in jeopardy with the Roberts court, which, Sotomayor warned, may be leading us “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

©2017 Marsha Mercer. All rights reserved.

30