YOU WIN SOME MORE……..

Religious school gets a win:

If the earlier grant for cert to Masterpiece Cakeshop offers hope for religious-liberty advocates, then the decision on Trinity Lutheran should have them in ecstasy. In a surprising 7-2 ruling, the Supreme Court reversed a lower court and ruled that the state of Missouri has to allow religious schools to benefit from a schoolyard-safety program. Under current state law, Missouri argued that religious schools had no access to state funds for any purpose, an argument demolished by both the controlling opinion and two others in support of it.

Chief Justice John Roberts authored the controlling opinion, and noted that the court had ruled similarly in the past on such issues. Roberts rejected the state argument that the school was seeking a subsidy, and noted that the purpose of its participation wasn’t to promote religion but to fulfill the mission of the program to improve child safety:

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 “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” Sherbert, 374 U. S., at 405. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. ….

In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.

Roberts argued in a footnote that the case was straightforward enough on those merits to avoid having to rely on an equal-protection argument. Justice Neil Gorsuch was not so sure about that, nor about the line between religious status and religious use:

First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante, at 12. Respectfully, I harbor doubts about the stability of such a line. 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). See Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 296 (1990) (Scalia, J., dissenting). Often enough the same facts can be described both ways.

Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990). And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993). Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. See Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 716 (1981); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947). I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way. …

Of course the footnote is entirely correct, but 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. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 25 (2004) (Rehnquist, C. J., concurring in judgment). And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.

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