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Symposium: Not on the taxpayers’ dime

Daniel Mach is Director of the ACLU Program on Freedom of Religion and Belief. He co-authored an amicus brief on behalf of the ACLU and various religious freedom and civil liberties organizations in Trinity Lutheran Church v. Pauley.

In Trinity Lutheran Church v. Pauley, the Supreme Court will consider whether the state of Missouri violated the U.S. Constitution when it denied the church’s application for a cash grant to subsidize the cost of resurfacing its playground with recycled scrap-tire material. While, at first blush, this may appear to be a simple dispute about payments for playground improvements, it implicates one of our most essential, enduring constitutional commitments: the ban on direct government funding of houses of worship.

The lower court in this case properly rejected what it described as the church’s “unprecedented” claims, which would force state taxpayers to underwrite improvements to church property. Indeed, the state acted well within its authority, pursuant to a longstanding provision in the Missouri Constitution, to exclude the church from its limited, discretionary grant program. Like more than three-fourths of the states across the country, Missouri includes in its constitution heightened protections against government-funded religion. These provisions promote important anti-establishment aims and provide critical church-state protections. As Chief Justice William Rehnquist’s majority opinion in Locke v. Davey made clear over a decade ago, states undoubtedly can enforce their no-aid provisions to withhold government dollars from religious institutions or activities, without running afoul of the federal Constitution.

Yet even without its no-aid provision, Missouri had no choice here, because the Establishment Clause of the First Amendment forbids the direct payment of taxpayer funds to churches and other houses of worship. The court of appeals seemed to think otherwise, suggesting in passing that the state could have opted to give the church a competitive grant for playground resurfacing without violating the federal Constitution. But a closer look at history and precedent leads to only one conclusion: Missouri’s decision to exclude Trinity Lutheran Church from the grant program was not only permissible, but required by the Establishment Clause.

The use of government money to aid churches gravely concerned the Framers of the Constitution and, in large part, animated passage of the Establishment Clause. The Framers recognized that forcing taxpayers to provide direct financial assistance to houses of worship violates religious liberty and jeopardizes the freedom to decide which faith, if any, to practice and support. In his famous Memorial and Remonstrance Against Religious Assessments, James Madison, the principal architect of the First Amendment, warned that compelling taxpayers to pay even “three pence” to support clergy and churches would trample the rights of conscience by coercing religious devotion.

The non-establishment principle helps fulfill the nation’s promise of religious liberty. It guards against compulsory support for religion. It also respects the increasing diversity of faith and belief in the U.S., allowing religious exercise to flourish without the corrupting influence of government and the power of the state’s sizable purse. The Framers were keenly aware that taxpayer support for religious institutions can lead to religious divisiveness, pitting faith against faith, sect against sect, as they compete for shares of the government’s largesse. At the same time, state-funded religion invites government meddling and entanglement in matters of faith. It is hardly surprising, then, that many devout religious adherents have ardently supported disestablishment for centuries. As the Baptist Joint Committee for Religious Liberty recently explained to the Court, disestablishment in the United States “marked an essential step toward the protection of individual religious liberty,” and “ensured that churches would not be funded through the coercive power of the state, but through the voluntary offerings of adherents, thus providing a constraint on government and a measure of religious liberty for individuals – to fund or refuse to fund religious institutions – that had long been denied.”

Against this historical backdrop, the Supreme Court has consistently recognized that providing direct government aid to religious institutions, even as part of a general funding program, raises profound Establishment Clause concerns. To be sure, the Court has, in some cases, upheld state aid to certain non-church religiously affiliated institutions, such as private schools and universities. Those circumstances, however, have been strictly limited, and the Court has always assured that the aid would not be used for religious activities or later diverted to religious purposes. As the Court has explained, there are “special Establishment Clause dangers where the government makes direct money payments to sectarian institutions,” because this form of state aid “falls precariously close to the original object of the Establishment Clause’s prohibition.” With that in mind, the Supreme Court has never sanctioned direct cash support to a house of worship – and with good reason.

Churches and other houses of worship are the quintessential religious institutions. By design and tradition, they play a singular and central role in many faiths. As a spiritual, symbolic, and practical matter, they are often the lifeblood and focal point of religious communities. Houses of worship frequently stand at the heart of organized religion and are inextricably intertwined with the faiths they represent.

Consequently, our laws often distinguish between houses of worship and other religiously affiliated organizations. Churches, mosques, synagogues, and temples, for example, receive certain exemptions under the tax laws; enjoy specific carve-outs under statutes like the Employee Retirement Income Security Act (ERISA); and benefit from express statutory protections for religious exercise, such as the Religious Land Use and Institutionalized Persons Act (RLUIPA). These legal distinctions provide houses of worship with breathing room to carry out their unique religious functions.

That special status, however, cuts both ways. As a result of the central, pivotal place that houses of worship occupy in many faith systems, the government’s direct provision of cash to churches raises Establishment Clause concerns of the highest order. The time-honored rule against direct taxpayer funding of houses of worship is a bright line that should never be crossed, no matter how well-meaning the state’s funding program may be. Strict enforcement of this constitutional boundary is essential to maintaining the delicate balance the framers sought to create when singling out religion for special protection.

Trinity Lutheran Church argues that the competitive grant it seeks would be “wholly secular.” Even if correct, that would not render the cash grant constitutionally permissible: “It is, of course, true,” the Supreme Court has emphasized, “that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.” In any event, the limited record in this case shows a significant risk that the church would use its taxpayer-financed playground for religious activities. According to the church itself, Trinity Lutheran integrates religious teaching and “a Christian world view” into all aspects of its preschool, and designs its programs “to teach the Gospel to children of its members, as well as to bring the Gospel message to non-members.” The church could use its playground, improved at government expense, for religious purposes in connection with the preschool, the church’s “Vacation Bible School,” Sunday school, or any other youth-oriented church event that involves religious instruction, prayer, or indoctrination. The government should neither oversee these religious activities nor pay for them.

Trinity Lutheran Church has every right to make capital improvements to its physical grounds and structure. But it can’t expect taxpayers to foot the bill.

Recommended Citation: Daniel Mach, Symposium: Not on the taxpayers’ dime, SCOTUSblog (Aug. 10, 2016, 9:21 AM),