This just in: The U.S. Supreme Court has ruled on June 26 that the government should support a Christian school that wants to make its playground safer for children. In a 7-2 ruling on the last day of the 2016-17 session, the Court said that the state of Missouri should have provided taxpayer funds to enable Trinity Lutheran Church in Columbia, Missouri, to lay a new surface of recycled tires under its playground equipment. The state has, since 2012, provided grant monies for schools that wish to improve playground safety for the children who use their facilities; but religious institutions were blocked from receiving support – even when no religious instruction was involved.
The closely watched case pitted two Constitutional provisions against each other: freedom of religion, and the separation of church and state. The Court ruling confirms that the Constitutionally protected freedom of religion, as guaranteed by the First Amendment, should not be superceded by “separation of church and state,” a policy which has been inferred from the penumbra of the Constitution. Chief Justice John Roberts, in writing the majority opinion, said:
The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
And during oral arguments last year, Justice Elana Kagan voiced her concern that Missouri's law against providing funding for nonprofits which are faith-based, even for activities and expenses which are not religious in nature. Kagan said:
You're denying one set of actors from competing [for the grant money] because of religion.
Dr. Grazie Pozo Christie, policy advisor for The Catholic Association, applauded the ruling. Dr. Christie said:
Today's Supreme Court decision in Trinity Lutheran v. Comer is a win for people of faith who join together to do good through their ministries and civic associations. This is good for all Americans, too, since our society is served in so many ways by religious institutions, which educate children, enrich the culture, assist the poor and immigrant, and care for the sick. Today the Court indicated that excluding Christian schools like Trinity Lutheran from government grants using anti-Catholic Blaine amendments is discriminatory, and unworthy of our great country.
The case has implications for roughly three dozen states which deny funds to organizations, based solely on their religious affiliation.
An End in Sight to Obama-Era Obstruction of Religious Liberty
The Supreme Court's ruling in the case of Trinity Lutheran v. Comer signals that the Court has turned away from the Obama Administration's record of obstructing religious liberty, and will protect the freedom of religious groups to operate publicly without government openly discriminating against them.
In October 2011, Bishop William Lori, head of the USCCB's Ad Hoc Committee on Religious Liberty, testified before the House Judiciary Committee and cited recent examples of government usurpation of the rights of religious institutions:
- In August 2011, the U.S. Department of Health and Human Services issued regulations to mandate coverage of contraception (including abortifacients) and sterilization as “preventive services” in almost all private health insurance plans. There was an exception for certain religious organizations; but the exemption was so narrow that few would qualify—and the exception does nothing to protect the conscience rights of insurers or individuals.
- In May 2011, HHS added a new requirement to its cooperative agreements and government contracts for services to victims of human trafficking and to refugees who are unaccompanied minors. Under the new policy, highly qualified service providers (such as the USCCB’s Migration and Refugee Services) were barred from participation in the program because they could not in conscience provide the “full range” of contraceptive services—namely, abortion and contraception.
- The State Department’s U.S. Aid for International Development (USAID) increasingly requires contractors, such as Catholic Relief Services, to provide comprehensive HIV prevention activities (including condom distribution), as well as full integration of its programs with reproductive health activities (including provision of artificial contraception) as part of their international relief and development programs. Under this requirement, some of the most effective providers helping to prevent AIDS in Africa and other developing nations would be excluded.
- In 2011, the federal Department of Justice (DoJ) ratcheted up its attack on the Defense of Marriage Act (DOMA), which was passed during the Clinton Administration in 1996, by mischaracterizing it as “bigotry.” In March 2011, the DoJ stopped defending DOMA against constitutional challenges; and in July of that year, the Department began filing briefs attacking DOMA’s constitutionality, claiming that supporters of the law could only have been motivated by bias and prejudice.
- The Department of Justice also sought to undermine religious liberty in the critically important “ministerial exception” case, Hosanna-Tabor v. EEOC. The Department of Justice could have taken the position that the “ministerial exception,” though generally providing strong protection for the right of religious groups to choose their ministers without government intrusion, didn’t apply in the case before the court. Instead, the DoJ attacked the very existence of the exception, in opposition to a vast coalition of religious groups urging its preservation through their amicus curiae briefs.
Religious liberty has been in the crosshairs at the local level, too, with the redefinition of marriage. For example:
- In New York, county clerks faced legal action for refusing to participate in same-sex unions, and gay rights advocates boast how little religious freedom protection individuals and groups will enjoy under the new law.
- In Illinois, Catholic Charities has been driven out of the foster care business because it recognizes the unique value of man-woman marriage for the well-being of children.
Protection for Bakers and Other Service Providers On Slate for October 2017
Also on June 26, the Supreme Court agreed to take up the case of a Colorado cake shop owner who has refused to bake a wedding cake for a same-sex couple because of his religious beliefs about marriage. Plaintiffs David Mullins and Charlie Craig, who are now legally married, filed a discrimination lawsuit in 2012, against Jack Phillips, owner of Masterpiece Cakeshop in suburban Denver, for refusing to bake a cake for their same-sex wedding. Phillips argues that the state law which compels him to bake and decorate a wedding cake for a gay couple is a violation of his free speech rights under the First Amendment. The case of Masterpiece Cakeshop and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig and David Mullins will be heard when the new session convenes in October 2017. That case is likely to affect numerous other cases currently in the courts, involving bakers, event venues, photographers and others.