States pro­hib­ited from re­fus­ing to fund church sec­u­lar ac­tiv­i­ties.

Prece­dent for sec­u­lar op­tions by faith out­fits

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

The Supreme Court ruled Mon­day that a state can­not refuse to fund a church’s sec­u­lar ac­tiv­i­ties just be­cause it is a re­li­gious in­sti­tu­tion, in a de­ci­sion Chris­tian con­ser­va­tives hailed as a ma­jor win for re­li­gious free­dom.

The 7-2 de­ci­sion clears the way for a Mis­souri church to resur­face its play­ground with money from a state fund set aside specif­i­cally to make play­grounds safer for kids.

But the rul­ing’s im­pli­ca­tions could stretch far be­yond Trin­ity Lutheran Church, sug­gest­ing new av­enues for re­li­gious or­ga­ni­za­tions to gain ac­cess to gov­ern­ment funds as long as they are aimed at a sec­u­lar pur­pose.

Chief Jus­tice John G. Roberts Jr., writ­ing for the ma­jor­ity, in­sisted the rul­ing doesn’t open the flood­gates, say­ing the de­ci­sion will likely pre­vent “a few ex­tra scraped knees.”

“The ex­clu­sion of Trin­ity Lutheran from a pub­lic ben­e­fit for which it is oth­er­wise qual­i­fied, solely be­cause it is a church, is odi­ous to our Con­sti­tu­tion all the same, and can­not stand,” the chief jus­tice wrote.

But oth­ers warned the court was tread­ing on dan­ger­ous ground. Jus­tice So­nia So­tomayor said it marked the first time the court has or­dered the gov­ern­ment to send money to a church.

“To hear the Court tell it, this is a sim­ple case about re­cy­cling tires to resur­face a play­ground. The stakes are higher. This case is about noth­ing less than the re­la­tion­ship be­tween re­li­gious in­sti­tu­tions and the civil gov­ern­ment — that is, be­tween church and state,” wrote Jus­tice So­tomayor, in a sear­ing dis­sent joined by Jus­tice Ruth Bader Gins­burg,

Trin­ity had sought money from Mis­souri un­der the state’s play­ground re­fur­bish­ment pro­gram, but the state said a 19th cen­tury rule, known as the Blaine Amend­ment, ex­cluded funds from go­ing to re­li­gious schools. More than 30 states have adopted a Blaine Amend­ment pro­vi­sion.

The court ma­jor­ity on Mon­day — a strik­ing coali­tion of the court’s five Re­pub­li­can-ap­pointed jus­tices and two Demo­cratic-ap­pointed jus­tices — ruled those poli­cies can­not be used to pre­vent sec­u­lar funds from go­ing to churches as long as the pur­poses are purely sec­u­lar.

Michael Far­ris, pres­i­dent and CEO of Al­liance De­fend­ing Free­dom, which rep­re­sented the church in the case, called the rul­ing “main­stream.”

“The up­shot of this case is that re­li­gious dis­crim­i­na­tion is no longer vi­able in this coun­try,” said Mr. Far­ris. “This is com­ing back to a more mod­er­ate po­si­tion where we’re see­ing re­li­gious peo­ple be­ing

treated just like every­body else.”

But Barry Lynn, ex­ec­u­tive di­rec­tor of Amer­i­cans United for Sep­a­ra­tion of Church and State, said he doubts the court is ready to out­right over­turn states’ Blaine amend­ments.

“It’s very dan­ger­ous when you have a Supreme Court re­ject­ing a state’s own in­ter­pre­ta­tion,” he said.

Chief Jus­tice Roberts stressed the lim­ited na­ture of his rul­ing, writ­ing in a foot­note that the case ad­dressed fund­ing of a play­ground — noth­ing fur­ther.

“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,” the foot­note read.

That drew a dis­sent from Jus­tices Clarence Thomas and Neil M. Gor­such, who agreed with the rest of the rul­ing but couldn’t abide by the foot­note, which they said seemed to sug­gest that play­ground money was the only source of fund­ing that can’t be re­stricted.

Jus­tice Gor­such went fur­ther, say­ing the court

could be creat­ing an im­pos­si­ble dis­tinc­tion for states and the fed­eral gov­ern­ment, mak­ing them have to peer into the mo­tives and na­ture of a church’s ac­tions.

“Is it a re­li­gious group that built the play­ground? Or did a group build the play­ground so it might be used to ad­vance a re­li­gious mis­sion?” Jus­tice Gor­such won­dered. “The dis­tinc­tion blurs in much the same way the line be­tween acts and omis­sions can blur when stared at too long, leav­ing us to ask (for ex­am­ple) whether the man who drowns by await­ing the in­com­ing tide does so by act (com­ing upon the sea) or omis­sion (al­low­ing the sea to come upon him).

“Nei­ther do I see why the First Amend­ment’s Free Ex­er­cise Clause should care,” he con­cluded.

For now, le­gal schol­ars were left to parse how far the chief jus­tice in­tends for his de­ci­sion to go.

Free­dom From Re­li­gion Foun­da­tion, which joined an am­i­cus brief against Trin­ity Lutheran, warned the rul­ing could open the flood­gates for tax dol­lars go­ing to­ward churches.

“Seven jus­tices turned their backs on the hal­lowed prin­ci­ple that cit­i­zens should not be forced to fi­nan­cially sup­port churches and church schools,” the or­ga­ni­za­tion’s state­ment read.

Nathan Di­a­ment, ex­ec­u­tive di­rec­tor at Wash­ing­ton, D.C.’s Ortho­dox Union Ad­vo­cacy Cen­ter, who filed an am­i­cus brief back­ing the church, said this rul­ing could stretch be­yond play­grounds and im­pact other kinds of safety and se­cu­rity pro­grams.

David Cort­man, an at­tor­ney for Al­liance De­fend­ing Free­dom who ar­gued on be­half of the church, said the de­ci­sion ap­plies to any neu­tral pro­gram open to ev­ery­one in­clud­ing ag­ing fa­cil­i­ties, pub­lic and pri­vate school safety pro­grams and med­i­cal pro­grams for chil­dren.

But El­liot Mincberg, se­nior fel­low at Peo­ple for the Amer­i­can Way, dis­putes there will be a broad im­pact.

“It’s very clear the ma­jor­ity wants to limit this case to these par­tic­u­lar kinds of facts,” he said. “The verdict is ‘to be con­tin­ued.’ We’re go­ing to have to see what hap­pens in other cases.”


Con­cerned Women for Amer­ica sup­ported the Supreme Court rul­ing that churches have the right to seek state money for new play­ground sur­faces and other needs.

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