A unanimous panel of the 6th Circuit has rejected the arguments of religious liberty advocates including the Baptist Joint Committee and ruled that Detroit’s funding of church building renovations with taxpayer dollars is permissible.
In an amicus brief, the BJC and others argued that direct cash aid to churches for building improvements is inherently unconstitutional, but the appeals court affirmed the trial court’s ruling that the aid here was offered to all buildings in the area without regard to the nature of the activity that takes place inside, and that only surface, secular renovations – not those embodying religious activity – received aid.
See below for more, including links, a little whining, and quotes from the decision.
The court did not take seriously the argument that judges are ill-equipped to make determinations as to which elements of a church are religious and which are not. From the decision (pdf):
All we can say for now is that there occasionally is no way to avoid the “hard task of judging—sifting through the details” of each program to determine whether its application offends the First Amendment. We have done that today, and if need be we can do it tomorrow. (Me–“All we can say for now”?)
And they dismissed – more with a shrug than an argument – the contention of the plaintiffs that the Michigan State Constitution requires an even stricter separation of government funding from religious institutions than does the federal Constitution.
If there is good news, it’s that the decision acknowledged – grudgingly – that the “pervasively sectarian” doctrine still is law and must be applied. So how did they get around that?
In considering whether the three religious entities at issue must be excluded from the program because they are “pervasively” religious—they are churches after all—we must ask whether the record rebuts the presumption they will use the aid to engage in proselytization. (Me–Does it not matter that they will undoubtedly use the church itself to “engage in proselytization”?)
Helpfully, this decision does not suggest that all neutral programs that grant funds to churches satisfy the Establishment Clause. In fact Judge Sutton explicitly states that it does not. But neither – he says – does the Establishment Clause prohibit any and all money from ever transferring from taxpayers to a church.
Ed Brayton has more at his blog. Detroit Free Press coverage is here .
