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Symposium: Religious freedom, not religious discrimination

Richard Katskee is the Legal Director at Americans United for Separation of Church and State. He filed an amicus brief on behalf of religious and civil-rights organizations, supporting the respondent.

The Framers of our federal and state constitutions saw governmental support as antithetical to religion. They had fled a country where that support incited competition among religious denominations for money and the political power to distribute it, ultimately leading to bloody civil strife.

To the Framers, the prescription to avoid these social ills was clear: Political institutions should have as little as possible to do with religion, and vice versa. For as James Madison put it, “religion & Govt. will both exist in greater purity, the less they are mixed together.”

As we explain in an amicus brief filed by religious and civil-rights organizations, Trinity Lutheran Church of Columbia, Inc. v. Pauley threatens this principled understanding of the relationship between religion and government. Trinity Lutheran Church operates a preschool and daycare center that teaches its charges a “Christian worldview.” When the church applied for a grant from the state of Missouri for money to purchase recycled tire chips for its playground, the state rejected the application because the Missouri Constitution strictly forbids public funding of churches. That decision was entirely proper under U.S. Supreme Court precedent; it is also sound public policy.

The Missouri Constitution guarantees that “no person can be compelled to erect, support or attend any place or system of worship”; that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion”; and that no state entity “shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or . . . help to support or sustain any private or public school . . . or other institution of learning controlled by any religious creed, church or sectarian denomination whatever.”

Trinity Lutheran argues that these sorts of prohibitions unconstitutionally discriminate against religion, in violation of the federal Establishment Clause, by excluding churches from eligibility for general grant programs.

But denying churches access to the state treasury isn’t unconstitutional religious discrimination; it is preservation of the healthy distance between religion and government that the Framers recognized as essential to ensuring religious freedom for all.

Missouri’s refusal to give money to Trinity Lutheran is at the very least a permissible exercise of state legislative authority. In Locke v. Davey, the Supreme Court recognized that the states have important “antiestablishment interests” beyond what the First Amendment protects: They can go further to defend religious belief and religious institutions against the heavy hand of government, and to gird government against the divisive influences that arise when different faith groups compete for public funds and political power. “Given the historic and substantial state interest at issue,” the Court held, a state’s decision to ensure that religious institutions and religious instruction are supported by private money instead of tax dollars is the very opposite of hostility toward religion.

Locke disposes of Trinity Lutheran’s arguments. Missouri’s program of handing out money to secular groups does not target a particular faith, religious exercise, or practice; it applies equally to all religious institutions. And Trinity Lutheran remains perfectly free to practice its faith and teach its students a Christian worldview. It simply has to pay for the upkeep and improvement of its own church facilities.

Governmental handouts to religious institutions carry grave risks. Here, for example, Missouri operates a competitive-grant program with a limited pot of money for cash awards. If houses of worship were eligible for the grants, state officials would be tasked with choosing which churches are most worthy of public support – a determination that government is ill-suited to make. Indeed, even if the state employed ostensibly neutral, secular selection criteria, such as number of children served or size of the facility getting the grant, it would likely end up favoring wealthy churches with large congregations, while excluding minority faiths and smaller, less popular houses of worship. That would create the appearance of favoritism and discrimination, which could foster sectarian competition and discord.

What is more, in the rare instances when courts have upheld public funding of religious institutions, they have required careful monitoring to ensure that the money is used solely for the intended secular purposes and does not impermissibly underwrite religion. When, as here, cash would be given to a church, it is unlikely that there can be any genuinely secular use.

In all events, the necessary monitoring would add substantial costs and administrative burdens that may deplete program resources, while also enmeshing state employees in intrusive, unseemly investigations into where and how churches are spending their money. Missouri would therefore find itself on the horns of a dilemma: Monitor too little, and the public funds may be used for religious purposes – violating the Establishment Clause; monitor too much, and the state may impermissibly entangle itself with religion – likewise violating the Establishment Clause. The framers of the Missouri Constitution took pains to make sure that their state would never find itself in that position. Trinity Lutheran should not be able to invalidate their wise choice.

At a more basic level, Trinity Lutheran’s argument stands on the proposition that any treatment of churches that differs from how government treats nonreligious institutions is constitutionally suspect. That argument is both specious and dangerous.

Government treats religion differently from secular institutions all the time – most often to religious institutions’ substantial benefit. Churches are exempt from certain federal tax laws applicable to all other nonprofits, from ERISA’s regulation of employee retirement plans, from some key prohibitions against employment discrimination, and from a whole host of other federal, state, and local laws. And yes, sometimes religion is treated differently by not being publicly subsidized when secular institutions and activities are.

This different treatment, in all its many forms, is what allows religious denominations and houses of worship to operate in accordance with the tenets of their faith and the principles of ecclesiastical governance that they set for themselves. If Trinity Lutheran were successful in persuading the Court that different treatment of churches is constitutionally suspect, then all accommodations, exemptions, and benefits would be at risk. So, too, would the right of churches to govern themselves.

It is worth emphasizing that the question here is whether Missouri can be compelled to provide state funds to a church. The fact that Missouri cannot be required to do so does not, of course, mean that a state’s decision to grant funds to a church would be permissible under the First Amendment.

The concern that government must not give direct cash aid to churches stands at the very heart of the First Amendment’s Establishment Clause. As Madison explained, the Framers considered it the height of governmental tyranny to “force a citizen to contribute three pence only” to support any church or denomination. Whether to adhere to a particular faith and pay to support a church, or to support none at all, was seen as the fundamental right of every individual. State financial support for churches is still forbidden by the First Amendment – out of respect for religious freedom.

One final point deserves special mention: Trinity Lutheran asks the Court to prevent Missouri from applying its constitutional prohibitions based on the contention that they are rooted in anti-Catholic bigotry arising out of the so-called Blaine Amendment – a failed effort to amend the U.S. Constitution that began in late 1875. And in perhaps the most bizarre aspect of this case, some nineteen states filed two separate amicus briefs to join that request, contending that it violates the U.S. Constitution to enact more stringent protections for antiestablishment interests than the federal Establishment Clause requires – the very thing that the Supreme Court upheld in Locke.

Mind you, many of those states don’t themselves have constitutional restrictions like Missouri’s, so it isn’t clear why they have a dog in the fight. But a number of them do have constitutional no-aid provisions – and they apparently wish the same ignominious end to their own clauses at the Court’s hands that Trinity Lutheran seeks for Missouri’s. It must surely be unique in the annals of federalism jurisprudence for so many (or indeed, any) states to petition the Supreme Court to invalidate their own constitutional provisions – adopted by their own citizens.

Be that as it may, Trinity Lutheran’s historical argument is simply wrong.

As explained in the legal and religious historians’ amicus brief, the history of the federal Blaine Amendment is far more complicated – and far less nefarious – than Trinity Lutheran and its amici let on. Although some contemporaries saw it as a way to limit the political influence of the Catholic Church, others recognized it as an attempt both to ensure that the public schools would be secular and therefore open to all faiths, races, and nationalities, and to ameliorate the denominational strife that comes when religious groups angle to impose their own religious beliefs on their neighbors’ children in the public schools.

The attempt to construct an Esperanto national history of prejudice and then to tie it to the Missouri Constitution is counterfactual. Missouri’s protections for state antiestablishment interests predate the introduction of the federal Blaine Amendment by more than half a century. Well before the first significant waves of Catholic immigration, the Missouri Constitution of 1820 provided that: “No man can be compelled to erect, support or attend any place of worship, or to maintain any minister of the gospel or teacher of religion.” The specific clause (Article I, Section 7) on which Trinity Lutheran and its supporters heap their greatest disapprobation was the product of a constitutional convention seven months before the Blaine Amendment was first proposed; and it was but a modest revision to a clause that Missouri had adopted five years earlier – and proposed five years before that. The clause was then re-enacted in 1945, again with not a whiff of anti-Catholic animus. And there is nothing to suggest that Missouri has ever applied the clause in a discriminatory fashion, much less that it is doing so now. In Locke, the Supreme Court rejected a similar attempt to tar the no-aid provision of Washington’s constitution; the redux here should likewise fail.

In the end, what Trinity Lutheran and its amici ask, with varying degrees of candor, is for the Court to overrule Locke in order to strike down democratically proposed, democratically adopted state constitutional provisions that were designed to protect the very interests that the federal Establishment Clause does. If they get what they ask, they will be putting their own fundamental rights, and those of every religious institution, denomination, and person of faith at grave risk.

Their rewriting of history and constitutional jurisprudence would not benefit either government or religion. Justice Sandra Day O’Connor perhaps put it best in McCreary County v. ACLU of Kentucky, when she warned:

At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. . . . Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Recommended Citation: Richard Katskee, Symposium: Religious freedom, not religious discrimination, SCOTUSblog (Aug. 11, 2016, 9:18 AM),