In the end, the Supreme Court’s view on the Missouri law that prevented state funds to improve the safety at a church playground wasn’t close at all.
Only Ruth Bader Ginsburg and Sonia Sotomayor sided with a state law
— similarly to one in 39 states — that explicitly bars state funds from going directly or indirectly to any religious sect or denomination.
The decision’s impact reaches far beyond the playground.
“Almost 200 years ago, the people of the state of Missouri, adopting language that finds its origin in the Founding Fathers, in Virginia and elsewhere, decided that we were not going to tax people in order to give money to churches,” James Layton, an attorney for the state, argued before the Supreme Court in April.
But the lawyer for the church had argued that funds can’t be barred if the activity isn’t religious. Playgrounds aren’t religious.
Or are they?
“Trinity Lutheran is not claiming any entitlement to a subsidy,” Chief Justice John Roberts wrote in today’s opinion. “It instead asserts a right to participate in a government benefit program without having to disavow its religious character.”
Nearly 200 years ago, a legislator urged the Maryland Assembly to adopt a bill that would end the State’s disqualification of Jews from public office:
“If, on account of my religious faith, I am subjected to disqualifications, from which others are free, . . . I cannot but consider myself a persecuted man. . . . An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”
Speech by H. M. Brackenridge, Dec. Sess. 1818, in H. Brackenridge, W. Worthington, & J. Tyson, Speeches in the House of Delegates of Maryland, 64 (1829).
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But 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.
New justice Neil Gorsuch wanted to go further. He disagreed with Roberts’ distinction between religious use and religious status.
Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? 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? 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).
“I worry that some might mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion,” Gorsuch wrote.
“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground,” Justice Sotomayor wrote in her dissent, insisting that the story here is the very question of the separation of church and state.
The churches uses the playground to “practice and spread” its religious message.
History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.
Today’s decision comes on the same day the court announced it will hear a case this fall to decide whether businesses can deny service to individuals on the basis of religion.