Will the Supreme Court Turn against Religious Liberty – Part 1

The disfavoring of religion in court decisions of recent decades is resulting in the exclusion of religion from society

The Alliance Defending Freedom (ADF) highlighted the crossroads situation that America faces with respect to religious liberty in two panel discussions at Capitol Hill on September 16. These discussed first the only religious liberty case now accepted by the Supreme Court, Trinity Lutheran Church vs. Pauley, and a second panel concerning the future direction that the Supreme Court can be expected to take with religious liberty in the coming years.

David Cortman, an ADF Senior Counsel and Vice President, Daniel Mach, Director of the American Civil Liberties Union Program on Freedom of Religion and Belief, and Keven Marshall, of the Jones Day law firm, who specializes in complex litigation before state and federal courts, discussed the Trinity Lutheran case.

Cortman began by noting that the case is a very straightforward one of whether or not a religious organization – in this case, a house of worship – gets government funding for a non-religious purpose. It concerns a child learning center owned by Trinity Lutheran Church in Missouri which won a competition for a state environmental program that provides funding for repaving playgrounds in rubber to aid in child safety. The award is given to the most worthy applicants. Cortman noted that the “church grounds [are] open to everyone,” and 95 percent of the children who use the playground don’t attend the church. The church was the fourth ranked of many participants, and received the award. After learning that the award had in fact been given to a church school, the State of Missouri withdrew it, due to the “Blaine Amendment” in its state constitution, prohibiting state aid to religious schools. Cortman noted that state aid is allowed at the federal level, and arguing in federal court that the Blaine Amendment is unconstitutional, the church lost at the original federal trial court, garnered support from one federal judge on appeal, and hopes for at least five justices on the U.S. Supreme Court to overturn the ruling. Cortman emphasized that the church met the criteria for award better than almost any other participant, and was denied the award solely because it was a church. “There is nothing behind these facts, [the] church run preschool [was] pretty popular.”

Marshall noted that America is “locked” in a struggle “about the place of religion” in American life. This is above all resulting from the struggle for homosexual liberation, and how the government can give “equal dignity” to everyone. Recently, he said, the U.S. Civil Rights Commission called all adherents of traditional morality “hypocrites and bigots.” Marshall said the current case is similar to another case of about ten years ago, Locke vs. Davey, in which the Supreme Court denied state aid to a student claiming state aid who chose a theological course of instruction. In that case, Chief Justice Rehnquist said that the State of Washington was pursuing an antiestablishment objective in good faith. The court held that the establishment clause did not require the State of Washington to withhold aid, but the free exercise clause did not preclude it. The problem with this line of reasoning, Marshall noted, is that if it is permissible to exclude religious organizations from “broad public benefits … what can you not exclude them from?” By “excluding religious” organizations, the environmental program is made less effective. Missouri is harming itself, Marshall concluded, in order to harm religious organizations.

Mach said that if the state wins in this case, the status quo will be maintained, whereas if the church wins, it will undo provisions against the funding of religious schools in 30 states. There is a “long-standing view that dates from the founders” against state aid for religious education. While this disadvantages religious organizations, on the other hand, it protects “church autonomy.”

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