Written by Don Byrd
Today’s U.S. Supreme Court hearing in Trinity Lutheran v. Comer concerns state law in Missouri barring government from funding religion. Trinity Lutheran Church, which was denied a government grant to resurface their church playground on this basis, claims the decision violates their religious freedom rights under the free exercise clause.
The Baptist Joint Committee’s Holly Hollman responded to today’s hearing in a new video. A BJC press release explains why Missouri’s rule prohibiting churches from receiving such grants is the right line to draw for the cause of religious liberty and should be upheld by the Court.
Below are some highlights from the transcript of today’s oral arguments. The Court first questioned the attorney representing Trinity Lutheran Church, David Cortman, and then the attorney defending the State of Missouri’s decision to deny funding, James Layton.
During Cortman’s questioning, he insisted that funding for a house of worship does not raise concerns requiring church-state protection if the government funds are directed at secular rather than religious activities, Justice Sotomayor raised the key issue of how difficult it is to separate religious from secular activities when it comes to a house of worship.
MR. CORTMAN: . . . I think there’s a difference between funding of religious activities and funding secular activities of religious organization. And I —
JUSTICE SOTOMAYOR: So how is the building separate from the religious exercise therein? I believe that this playground is part of the ministry of this church. And, in fact, I look at its bylaws, I look at its advertisements, and it includes play and conducted in a religiously valuable way. I think that’s the materials that you’re — that the church is advertising. How do you separate out its secular function from its religious function?
MR. CORTMAN: I think the way the Court always has. And the answer to that is, for example, even though the motivation behind operating this preschool is a religious motivation, doesn’t mean that every single activity that occurs there happens to be religious.
Later, Justice Sotomayor discussed with Cortman the issue of how, exactly, religious exercise is curtailed by losing access to playground resurfacing funds.
JUSTICE SOTOMAYOR: There are 39 States with constitutional amendments like the one Missouri has. . . . . And the essence of that history is, basically, we don’t want to, as a country — well, the vast majority of States, to fund houses of worship. One would think that . . . States are free to say we don’t want to spend money from the public fisc on houses of worship. Now, you say this affects free exercise. We seem to be confusing money with religious practice. I don’t think the two are tied. This church is not going to close its religious practices or its doors because its playground doesn’t have these tires. So I’m not sure how this is a free-exercise question, because there is no effect on the religious beliefs. No one is asking the church to change its beliefs. In fact, no one is asking the church as a condition of saying don’t use what we give you for religious purposes; they’re not even doing that. They’re just saying we don’t want to be involved with the church.
MR. CORTMAN: Sure. But there’s — there’s government coercion when you say there’s a public benefit, and the only way you could receive that public benefit is if you do not exercise your religion.
JUSTICE SOTOMAYOR: But you can have a playground here.
MR. CORTMAN: But you can’t be — you can’t be a religious organization and have a playground.
JUSTICE SOTOMAYOR: You have a playground. No one is taking the playground away from you.
Justice Kagan questioned the church’s attorney on why he would deny a state the right to make its own decision on whether and how to prevent church funding
JUSTICE KAGAN: …You know, usually when we see these funding cases, it comes in a different context. It comes where the State wants to give money and somebody is objecting. And this case comes in the converse way, where a State says we just don’t want to fund . . . this institution. And these — these church/States divide, it’s a — it’s a fraught issue. It’s a hard issue. It’s a — it’s an issue in which States have their own very longstanding law. It’s an issue on which I — I guess I’m going to say nobody is completely sure that they have it right. And — and so I guess there’s something attractive about having some play in the joints where States can go their own way and make their own choices. And why shouldn’t this be one of those cases?
. . .
do you see value in the other side in having some flexibility here for States to make these sorts of choices?
MR. CORTMAN: I think States have tremendous leeway in the way they set up and decide these types of programs. And here’s what I would say, which I think is an easy solution. Number one, the State doesn’t have to set up the program in the first place. Number two, it could set it up in a way that said, we’re only going to do government schools’ playgrounds and not any private schools. But once it sets up the program to include all not-for-profits and all not-for-profit preschools, it sets out 16 different criteria, neutral criteria, that everyone has to comply with. Then the question is, is — when you have a — a religious organization that meets those criteria; in fact, does better on them than almost everybody else, and then you look at the application and say, well, we just found out you’re operated by a religious organization, we’re going to take you back out of that, even though you meet the State’s criteria and further our interest better than almost everybody else, that seems to be not a difficult [case].
During Mr. Layton’s questioning, the Court was especially concerned with where to draw the line. What are the limits to the state’s view that government benefits can be denied to a house of worship? Justice Breyer asked if emergency benefits to churches could be denied under the Missouri law barring aid to religion:
JUSTICE BREYER: I’m asking, does the Constitution of the United States permit a State or a city to say, we give everybody in this city police protection, but not churches? We give everybody fire protection, but let the church burn down. We give everybody public health protection, but not a church. That’s — that’s the law in my imaginary State. And I’m saying, does the Constitution, which guarantees free exercise of religion, permit such laws?
MR. LAYTON: I — I am not going to take the position that it permits those laws —
JUSTICE BREYER: All right. Now you say no, it does not permit those laws. Very well. If it does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera? What’s the difference?
MR. LAYTON: If the sole benefit to the church and its members was health and safety and we could draw that line, that may make some sense. But, of course, that’s not true here. It’s — it’s more than that here. What we are being asked to give to this church is actually a visible improvement in their physical plant. And understand that this is a church that declares in their petition that they use this preschool to bring the gospel message to nonmembers. This is —
CHIEF JUSTICE ROBERTS: So it’s — it’s not — now your line is the benefit, if the benefit is physical, that’s okay; but if it’s not, it’s not?
MR. LAYTON: No. I’m saying that — that even physical changes, even if they have a safety element, may still have an entanglement problem. Because we are saying to the church, you — you have this now incentive to rearrange your property, your church site, in order to maximize the amount you get from the State rather than maximizing the spiritual development of the children.
Layton’s closing moments were especially strong in pointing to the inherent problems of entanglement when the state funds religion. (My emphasis)
MR. LAYTON: There is no way for the State to comply with the . . . requirement, that we police the use of the funds and what the funds here put on there without becoming involved with the church. There’s a statement in the Appellant’s brief that says that the church is told that it can’t participate in the life of the community, but what Trinity wants is to have the community participate in the life of the church.
And wherever the line is, that ought to be on the other side of the line, just like wherever the line is, writing a check that says payable to Trinity Lutheran Church ought to be on the other side of the line.
A decision in the case is expected this summer.