26 June 2017

The church-state playground

While most observers cared only to learn what the Supreme Court would do about the President's proposed restrictions on travel to the U.S., the high-court announced a historic decision today on an unrelated topic. In Trinity Lutheran v. Comer a 7-2 majority ruled that state governments could not discriminate against churches, but are required under certain circumstances to give money directly to them. The state of Missouri started the trouble by refusing Trinity Lutheran's request for public funding to resurface its playground. the Missouri constitution forbade the disbursement of public money to any house of worship. According to the majority on the court, Missouri unfairly denied Trinity Lutheran a government benefit to which it was entitled. According to the Chief Justice, that was "odious to our Constitution." The decision endangers similar laws in other states, collectively known as "Blaine Amendments," enacted during the 19th century and attributed in retrospect to anti-Catholic bigotry. The majority gave several opinions to make the implications of their decision uncertain. Some justices emphasize that states are not now required to subsidize religious activities, arguing only that churches can't be denied access to a state-funded playground repair program. Rookie justice Gorsuch, however, isn't so sure a clear line can be drawn separating a church's religious activities from  ostensibly non-religious activities like maintaining a playground. That he expressed this caveat while voting with the majority suggests that Gorsuch will have more to say on the separation of church and state down the line. The two dissenting justices, Ginsburg and Sotomayor, make no distinctions between religious and non-religious activities; if a church receives money from Missouri's playground fund, that state is supporting religion, period.

Writing the dissent, Sotomayor hints at another future battle by affirming that under the First Amendment, "the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship." This is an argument that could easily cross conventional liberal-conservative or secular-religious lines: the Supreme Court has entitled Missouri churches unfairly to a benefit toward which they don't contribute. If people are going to complain about their precious taxpayer dollars going to other categories of deadbeats, shouldn't they protest now against their dollars going to churches? I imagine that even devout Americans would agree that churches should pay in for whatever they get out of government -- and if taxing churches became commonplace no one would worry about endangering their tax-exempt status by speaking from the pulpit on political questions. If discrimination due to religion is wrong, it should be no less wrong for state and federal governments to discriminate in favor of churches by exempting them from taxes than it is to discriminate against them by denying them taxpayer-funded benefits. If that line of argument doesn't persuade people to have churches taxes, maybe it'll persuade them to dissuade churches like Trinity Lutheran from stirring up trouble by asking for government handouts. Time will tell.

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