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Why Trinity Lutheran is the Most Important Case of the 2016 Term

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Trinity Lutheran v. Comer was the most important case of this Supreme Court term both because of its effects on educational policy and on the future character of the American polity.  There a six-member Court majority held that Missouri could not prevent a church from competing for public funds for rubber mats to make its preschool playground safer for children.   The Court held that the government cannot withhold funds for an essentially secular project simply because the potential recipient is engaged in religious exercise. As I previously suggested it would, this case extended to free exercise rights the doctrine of unconstitutional conditions previously applied to other constitutional rights.

As the Chief Justice Roberts noted, the only practical result of the denial in this particular case would have been “in all likelihood, a few extra scraped knees.” Nevertheless, the future consequences of this holding are likely very substantial. There are 37 states that have restrictions on state aid to institutions which are engaged in religious exercise.  State Supreme Courts have often interpreted these prohibitions to prohibit school voucher programs and other forms of assistance for education by religious institutions.

But this case will sweep many of these decisions away. To be sure, some will argue that the Court’s curious footnote three, which limited the actual holding to playground improvements, limits its applicability. But a fair reading of principles announced in the opinion would also provide constitutional protection for assistance to schools run by religious institutions so long as that assistance is directed to programs of secular subjects.

And mandating that school assistance be given to programs at religious as well as secular schools provides a major boost to the school choice movement, because it will mobilize religious as well as secular schools in support of these programs. And injecting more competition in K-12 schooling will encourage innovation at a time when better education is desperately needed to prepare students for a future where they will need the skills to change jobs many times during a career.

But beyond its practical importance, this case assures that free exercise will not become a second-class right in the modern age where the state provides substantial funding for enterprises supported by both secular and religious institutions.  Alexis De Toqueville correctly understood that what made America distinctive and great was the renewal and engagement provided by its civic associations. They can create public goods and generate beneficial social norms. But if the state were to permitted to subsidize secular associations at the expense of religious ones, it will create an unequal playing field for civic life.  That result would not separate church and state, but instead create state subordination of religious associations to secular ones.

Reader Discussion

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on June 27, 2017 at 09:17:50 am

good points on *potential* for this decision.

A quibble:

" And injecting more competition in K-12 schooling will encourage innovation at a time when better education is desperately needed to prepare students for a future where they will need the skills to change jobs many times during a career."

Instead of innovation, how about we emphasize some *traditional* schooling and teaching methodologies. It strikes me that all of we old codgers did quite well for ourselves and our country having "suffered" through those "antiquated" teaching methodologies. Were it not for all the "innovative" new teaching techniques, our children might actually be able to read, speak and write - and god forbid, understand their own history.

Anybody have any "Dick and Jane" readers? "See Spot. See spot run!"

worked for us, didn't it?

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gabe
on June 27, 2017 at 10:57:08 am

Some who claim to be "biblical Christians" (as well as others) do not recognize a sacred/secular distinction. For them, there are no "secular subjects" in school; there's no escape from religious presuppositions and evaluations. Does the Court's continuing to make such a distinction inevitably inhibit their "free exercise"?

What about the "free exercise" of the taxpayers from whom these "public subsidies" come? Nevermind whether the Lutherans are being discriminated against. Should Atheists, Baptists, Catholics, Hindus, Jew, or Muslims be compelled to pay for non-essential government services that benefit a private organization (or even several private organizations)? Perhaps these taxpayers would rather have used their own money to buy shredded tires for themselves.

The Chief Justice writes, "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character." The whole controversy would be avoided if the government stopped "benefit programs" that subsidize private organizations--whether liberal, conservative, sacred, or secular--through socialist transfers of wealth. I say, Shame on the Lutherans for participating in this scheme.

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Jack West
on June 27, 2017 at 12:05:00 pm

"Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Here are all the steps that are necessary in order for Congress to make a law respecting an establishment of religion:

https://kids.usa.gov/government/how-a-bill-becomes-a-law/index.shtml

Here is the definition of endorse:

https://www.merriam-webster.com/dictionary/endorse

Here is the definition of establish:

https://www.merriam-webster.com/dictionary/establish

"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 purpose of education is to develop good citizens who desire to contribute to and become viable members of a just, civil, and productive society, thus the purpose of a education is both intellectual and moral.

Catholics are part of the public, too. There is nothing in our Catholic Faith that precludes us from becoming good citizens, thus it is unjust discrimination to withhold public funds for education for those who desire an education consistent with our Faith and morals.

Thus to deny funding for students attending schools that educate part of the public in communion with our founding Judeo-Christian principles, can only be due to either animus or the failure to recognize the spirit of our Constitution.

As stated in Trinity Lutheran’s brief to the court on the merits of the case, “A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane.” So too, does a public education that seeks to educate the public to form good citizens residing in a civil society.

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Nancy D.
on June 27, 2017 at 13:50:33 pm

1. Many called him simply He Who Must Not Be Named. But Dumbledore called him Voldemort, or Tom Riddle. Dumbledore knew that Riddle wished to build an aura of uniqueness around himself. Dumbledore declined to grant him that distinct status—even if this meant declining to characterize Riddle as uniquely bad. To Dumbledore, Riddle was just another wizard—a more extreme version of wizards you may know, perhaps; but merely different in degree, not kind.

Likewise, I argue for equality before law. I resist the idea that anyone’s ideology should enjoy a special status in the law—even if this is a special subordinated status. Thus, I’ve resisted the Lemon test that says that the state should avoid undue entanglements with religion, but not with other non-governmental groups. Consider all the places that the Boy Scouts of America appears in statute. And how ‘bout the US Olympic Committee? Or the Red Cross? Or the ABA, or the AMA? Should state colleges kow-tow to private accrediting organizations? Shouldn’t the state be cautious about undue entanglements with these private organizations as well?

2. What now will become of Locke v. Davey (2004), wherein the Court upheld the State of Washington’s scholarship program that was available for any degree other than a “degree in devotional theology”? It’s time to overturn it.

For me, this was a case about formalism. I see no problem with the police expelling the trespassers designated by the landowner, even if the landowner employs racist criteria in identifying the people to be expelled. But if the landowner instructs the police to use their own judgement in “expelling all the black people,” he goes too far; the police cannot become an active agent, exercising discretion on behalf of a private actor’s undue discrimination. Even if the outcome of the two policies were the same, one path is Constitutional while the other is not.

Likewise, the state is free to offer scholarships for any educational program; it can list as many programs as it likes, evidencing its support for subsidizing that kind of education, without necessarily evidencing animus toward programs that are not listed. But when the state says that a scholarship is good for any degree program, no matter how useless, just so long as it isn’t devotional theology, how can this be anything but an expression of animus? Even if the outcome of the two policies were the same, one path is Constitutional while the other is not.

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nobody.really
on June 27, 2017 at 16:35:09 pm

nobody:

Great points!

So let me extend your argument.

Why not get the State out of almost everything it currently sees fit to oversee / monitor / control? (hyperbole, of course). It seems that at long last you have come around to recognizing the difficulties of State action and the consequent *transformation* of a civic good into a "public" good.

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gabe
on June 28, 2017 at 01:30:18 am

Well, anarchy has its appeal, but people often conclude that its costs exceed its benefits.

That said, and consistent with my prior remarks, I would favor eliminating tax-exempt (501(c)(3)) status. It requires government/courts to make myriad distinctions about who does or does not fit within the initial qualifications (religious purpose?), and whether organizations continue to qualify (by, for example, refraining from making partisan endorsements). Republicans were aggrieved that the IRS had failed to recognize certain organization's tax-exempt status. If we eliminated this status, we'd eliminate a huge number of disputes--and we'd make a great stride forward in providing equality under law.

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nobody.really
on June 28, 2017 at 02:00:16 am

Some who claim to be “biblical Christians” (as well as others) do not recognize a sacred/secular distinction. For them, there are no “secular subjects” in school; there’s no escape from religious presuppositions and evaluations. Does the Court’s continuing to make such a distinction inevitably inhibit their “free exercise”?

For what it’s worth, consistent with my remarks below, *I* have skepticism about the alleged sacred/secular distinction within the law. If you believe in a creator God, it becomes a challenging theological problem to identify the parts of creation that should be regarded as secular and unrelated to the creator. And if you don’t believe in God, then it becomes challenging to justify according special status to people/things/seasons that correspond with such beliefs.

Instead of discriminating between “sacred” and “secular,” I favor government policies that discriminate on the basis of bona fide governmental interests. If we want government to defend autonomy, it makes sense for government to punish murder, but not blasphemy. Whether or not anyone would regard such policies as “sacred” or “secular”—whether or not such policies conform to a religious text—really doesn’t enter into the analysis.

What about the “free exercise” of the taxpayers from whom these “public subsidies” come? Nevermind whether the Lutherans are being discriminated against. Should Atheists, Baptists, Catholics, Hindus, Jew, or Muslims be compelled to pay for non-essential government services that benefit a private organization (or even several private organizations)? Perhaps these taxpayers would rather have used their own money to buy shredded tires for themselves.

The Chief Justice writes, “Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.” The whole controversy would be avoided if the government stopped “benefit programs” that subsidize private organizations–whether liberal, conservative, sacred, or secular–through socialist transfers of wealth.

For what it’s worth, I favor eliminating 501(c)(3) status on the grounds that it discriminates on the basis of criteria that are unrelated to bona fide governmental purposes, and has the effect of burdening taxpayers who must bear burdens that are being shirked by others.

That said, my “bona fide governmental purpose” standard differs from the “non-essential government services” standard. I could see that the government might conclude that reducing playground injuries, and finding better ways to dispose of old tires than using up landfill space, might both be bona fide governmental purposes. But you may or may not regard them as “essential.”

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nobody.really
on June 28, 2017 at 15:48:28 pm

Agreed on 501(c(3))'s.

Then again, I believe that it would be better if *corporate* persons, whether for profit or non-profit did not have political speech rights. Individuals and individuals alone ought to have 1st amendment protections - no unions, no corporations, no NRDC's etc.

As for anarchy, recall, I qualified the initial comment as hyperbole (as Picasso said, "Art is a lie designed to illumine the truth) - even still I can't paint worth a damn. consequently, I look for a reduced canvas - as should government.

seeya

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gabe
on June 28, 2017 at 16:00:14 pm
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nobody.really
on July 07, 2017 at 21:43:24 pm

[…] fireworks concerning religious freedom exploded in what some commentators hailed as the most important case of the term, Trinity Lutheran Church v. Comer, decided a week before July 4. Though it’s hard to tell for all […]

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