Resurfacing the Church-State Wall

Last week’s U.S. Supreme Court 7-2 ruling in Trinity Lutheran v. Comer was rightly hailed by many religious rights advocates as a sensible statement that religious institutions should not be treated as lesser entities when it comes to allocations of certain public funds.

But a separate but concurring opinion by Justices Clarence Thomas and Neil Gorsuch holds out hope that future Court decisions might go even further.

The issue in the much-watched recent case was the resurfacing of a playground. Specifically, whether a Missouri house of worship’s preschool’s outdoor play area, which was surfaced with pebbles, qualified for a state program that uses recycled tires to smoothly pave playgrounds. State officials rejected the church’s application in 2012 because Missouri’s state constitution, like the constitutions of 38 other states, has a “Blaine Amendment,” a provision that prohibits religious institutions from getting public funds.

The Court ruled in favor of the church, which was what heartened religious advocates, including Orthodox Jewish ones like Agudath Israel and the Orthodox Union, who feared that a ruling against the church might herald restrictions on an assortment of public services that currently serve religious institutions no less than nonreligious ones.

The advocates, moreover, were particularly heartened by the phrase “Except as to footnote 3,” in the concurring opinion by Justices Thomas and Gorsuch. The footnote to the Court’s majority opinion to which they were referring — and to which they were effectively objecting — was a 27-word addendum by Chief Justice John Roberts limiting the ruling to the case at hand and stating that it should not be understood as having implications for other types of government funding. “We do not,” the footnote states, “address religious uses of funding or other forms of discrimination.”

And so, issues like religious schools’ eligibility for school choice or tax-credit programs are not directly affected by the recent decision. But future cases concerning such issues are scheduled to come before the Court in the fall. Whether or not the Justices will choose to extend their reasoning in the Trinity case — that religious entities may not be discriminated against simply because of their religious natures — and apply it more broadly remains to be seen. But Justices Thomas and Gorsuch, by rejecting Justice Roberts’ footnote, have indicated something of their own feelings.

At the same time, though, even as we celebrate steps toward providing religious institutions with the same public funding benefits and opportunities as nonreligious ones, we have to be concerned about whether religious entities might, as a result, be adversely affected in their rights to their beliefs and practices.

Our country has a long tradition of special respect for religion, enshrined, of course in the Constitution’s “free exercise” clause but extended to things like income and property tax exemptions and zoning law exclusions.

Those particular advantages are not currently under attack, but it is important to recognize that a careful balance must be struck between government’s treatment of religious entities like any other ones and its recognition of religious institutions’ special role in American society and law.

Part of that balance — and here the issue is very much on the judicial agenda — involves anti-discrimination laws. Needless to say, shuls and yeshivos do not discriminate in either hiring or teaching or providing services on the basis of race, color or national origin. But with expansions of anti-discrimination laws in various jurisdictions to cover other, very different, categories, religious institutions and individuals, including those in our community, can find themselves in a bind, with anti-discrimination laws demanding what their religious consciences cannot abide.

A case that the High Court has accepted for its next term is Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Lakewood (Colorado, not New Jersey) baker refused to craft a cake designed for a ceremony that violated his religious sensibilities.

Whatever decision will be reached by the Court in that case will likely be limited to businesses that offer creative services — though that will include and affect many businesses, like florists, photographers and musicians. But a ruling in Masterpiece may still signal the general approach the Justices will take in other future cases where religious conscience and laws born of “progressive” societal considerations conflict.

From our perspective, there is no contradiction between treating religious entities the same as nonreligious ones in government funding issues — including school choice and tax credit programs — and government respect for religious institutions’ and individuals’ consciences.

We hope that, in future decisions, the Supreme Court will demonstrate that it shares that view.

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