June 27, 2017 By Kyle Sammin
When a church interacts with the government, how much entanglement is too much? Where must states draw the line if they wish to avoid violating laws mandating minimal state involvement with religion? The exact boundaries are fuzzy, but in Trinity Lutheran Church v. Comer, the Supreme Court gave those lines some definition and struck a blow for religious liberty in the process.
The case is the latest installment in the long-running series of suits that seek to define the rules of church-state interaction. Early Americans worried about the government trying to establish a state church, as European governments did. We have overcome that problem. In this more secular age, church-state disputes focus not on government forcing a religion on us, but on government discrimination against all religions and religious people.
Are Playgrounds Churches?
The case involves the fairly ordinary subject matter of a state program to distribute a kind of safety equipment—a rubber surface made of recycled tires—to playgrounds. The uncontroversial measure was made more complicated by two facts. First, the playground is owned by a religious institution, Trinity Lutheran Church of Columbia, Missouri. Second, Missouri has a prohibition in its state constitution against funds being “taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
These facts led the Missouri Department of Natural Resources to deny the benefits of the program to any religious institution, including Trinity Lutheran Church. When their application was rejected, they sued, arguing that the blanket ban on any benefit was a violation of the Constitution’s First Amendment.
After appeals, the Supreme Court held in a 7-2 opinion that the church was right. Missouri’s law, as Chief Justice John Roberts wrote, “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”
What Are Blaine Amendments?
The case has broad implications. Many states’ constitutions have prohibitions like Missouri’s. These laws, called Blaine Amendments, date back to the mid-nineteenth century and were inspired by anti-Catholic prejudice. Immigration from Catholic parts of Europe had made the United States less monolithically Protestant. Catholics began to educate their children in parochial schools just as state-funded schooling was becoming universal.
Some Protestants feared that states might choose to fund Catholic schools on an equal basis with public schools, which were run primarily by Protestants. (Christian Sagers explained more about the history of Blaine Amendments in his article on this case yesterday). Many people, especially Republicans, who rarely attracted Catholic votes in those days, called for constitutional amendments to prevent the possibility. Rep. James G. Blaine of Maine, one of the most prominent Republicans of his day, led the fight.
Possibly he wished to make sure that anti-Catholic voters supported him in spite of doubts they had about his own faith—Blaine’s mother was Catholic, but he was raised in his father’s Presbyterian faith. Perhaps he just hoped a popular policy position would propel him to the White House (he ran for president the year after he proposed the amendment, and again four and eight years after that). Or maybe Blaine truly believed the Catholic Church posed a threat to American children’s education, something many on the secular Left would agree with in twenty-first-century America.
Whatever the case, Blaine’s amendment failed to advance at the federal level but succeeded in being adopted in a majority of state constitutions. Many of those state constitutions still contain Blaine Amendments, forcing state governments to steer clear of assisting religious institutions even in the most non-religious of circumstances, such as making a playground safer for all of the children who use it.
Blaine Amendments were born of an age more concerned with states funding religion and less concerned with the states discriminating against people of faith. While the last established (i.e., state-sponsored) church in America lost its government association in 1818 (read more about that here), early public schools were run with a Protestant student body in mind. No particular sect of Protestantism held sway, but the school prayers were from a tradition unfamiliar to Catholics, let alone non-Christians. Today, we would look on this as a taxpayer subsidy for religious education. In Blaine’s day, the problem for many was not that Protestantism was established but that Catholics might get a piece of the pie.
In our own time, almost everyone would agree that the First Amendment’s Establishment Clause would bar a state government from directly funding a religious institution. When considering churches’ less religious functions, such as education, states still tend not to commingle public taxpayers’ dollars with sectarian institutions. Indeed, much of the fight around education vouchers today is over whether states should give education dollars to any institution other than government-run schools, whether that other institution is religious or secular. Diversion of power from the state is the issue there, with endorsement of religion as a mere sideshow.
Even the faith-based initiatives that have helped to administer some social service programs since the welfare reform of 1996 feature religious organizations working in an area of religious and secular overlap—helping the poor. The issue in Trinity Lutheran is a further step removed from even that fight. Religious worship is not involved here, nor children’s education, nor the kind of charity religion inspires. Instead, we have a church-owned property that functions identically to a secular property and is open to all children no matter their faith. No one could confuse a grant of playground safety equipment on an equal basis to all institutions with a backdoor to the creation of an established state church.
Our Constitution Protects Religion, Too
Avoiding a state-sponsored church does not require banishing religion from the public square. That goes beyond the disestablishment of the Founding Fathers and into European-style secularization—what the French call “laïcité.”
Our American Revolution was led by men who did not want a state church to control the people through the force of law. They valued virtue, but did not wish to impose it through an American version of the Church of England. The French Revolution was different. Its leaders hated the Catholic Church as much as they hated the aristocracy that supported it, and sought to drive both from public life. Echoes of that revolution still govern public displays of religion in France. America has no such statutory animus toward faith. Our Constitution reflects that in the other half of the First Amendment’s strictures on religion: the Free Exercise Clause.
The issue in Trinity Lutheran is not one to do with government-sponsored religion; it deals only with people exercising their own faith in a constitutionally protected way. The case concerns the state treating a religious institution differently from a non-religious one in a forum that has nothing to do with religion. On that, Roberts writes that the Supreme 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 that can be justified only by a state interest of the highest order.”
The court found no such state interest here. “In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit,” Roberts writes. “The rule is simple: No churches need apply.” Seven justices agreed that the rule imposed by Missouri’s Blaine Amendment was incompatible with the First Amendment: “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.”
Religious institutions have come under increasing threat in recent years. In Trinity Lutheran, the Supreme Court confirms that they still have constitutional protections and will not be banished from public life in America.