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Symposium: Court ruling bolsters religious liberty… beyond the playground

Nathan J. Diament is the Executive Director for Public Policy of the Union of Orthodox Jewish Congregations of America. He filed an amicus brief on behalf of the union in support of the church in Trinity Lutheran v. Comer.

Seventy years ago, in Everson v. Board of Education, the U.S. Supreme Court rejected an establishment clause challenge to the state of New Jersey spending tax dollars to support schoolchildren traveling safely to and from schools – including Catholic parochial schools. Justice Hugo Black famously wrote for the court that the establishment clause “requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.”

Today’s ruling in Trinity Lutheran v. Comer reaffirms this fundamental principle and repudiates the argument of those who have invoked the “separation of church and state” to discriminate unfairly against houses of worship and other religious institutions in government funding programs. (Only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented to assert that view.)

Moreover, today’s ruling ensures that decisions that have been made by legislators in Congress and state capitals in recent years – to provide houses of worship and parochial schools with an equitable share of public funds for security, health and other safety programs – are on solid constitutional footing and other states can follow their lead.

As my organization presented in our amicus brief to the court, Congress has enacted several measures over the years to provide funds for the improvement or support of religious facilities – both houses of worship and parochial schools. These include the Department of Homeland Security’s Nonprofit Security Grant Program, federal grants for asbestos removal in schools and the Interior Department’s Save Our Treasures grant program (which awarded funds to assist the Old North Church and Touro Synagogue in building repairs).

At the state level, legislators and governors in New York, Florida, Maryland and Pennsylvania have all recently allocated millions of dollars in security-grant funding to parochial schools as well as houses of worship. These and other states also provide schools (including parochial schools) with funds to hire nurses, purchase first aid supplies and administer vaccinations.

Although no lawsuits have been brought challenging these programs, some liberal advocacy groups have lobbied against them, asserting they would violate the “separation of church and state.” They typically cite the Supreme Court’s rulings in Tilton v. Richardson and Committee for Public Education v. Nyquist as their basis.

Indeed, Tilton and Nyquist put limitations on government funds going directly to religious institutions if those funds were not somehow limited to supporting secular activities. But those opinions were rendered in the early 1970s – the apex of the court’s era of strict separationism. Since the mid-1980s, the principle of neutrality – first articulated in Everson – has ascended in the court’s decisions in state aid cases. Neutrality toward religion was an animating principle in Mitchell v. Helms, Zobrest v. Catalina Foothills, Agostini v. Felton and more. Those cases used the neutrality principle to place boundaries upon the establishment clause. Today’s ruling in Trinity Lutheran deploys (Chief Justice John Roberts would contend – reaffirms) neutrality as an animating principle for free exercise clause challenges to states’ exclusions of religious entities from aid programs.

As the chief justice wrote for the court:

…[Missouri’s] policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: “To condition the availability of benefits . . . upon [a recipient’s] willingness to . . . surrender[] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.”

Most would view this statement as constitutional common sense, and the fact that it commands seven votes today would seem to make it so – but it took four decades to get here in the context of government funding and free exercise.

Of course, the champions of 1970s-style strict separationism will try to limit today’s ruling by pointing to the chief justice’s footnote 3 and assert this ruling is limited only to playground resurfacing grants. But a careful reading reveals that is not what the footnote stands for. Footnote 3 reads:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

For purposes of this discussion, the key phrase here is “religious uses of funding.” What the chief justice says the decision does not reach are state grants to houses of worship that might be channeled to supporting explicitly religious activities – such as prayer, theological instruction and similar “religious uses.” Justice Neil Gorsuch’s dissent (joined by Justice Clarence Thomas) would permit state funds to subsidize such religious activities if they were awarded on the basis of religion-neutral criteria. It seems obvious that Justices Elena Kagan and Stephen Breyer (at least) would not go along with that approach. But we have at least three (if not five, if we count Roberts and Justice Anthony Kennedy) justices who would allow state funds to support explicitly religious activity if awarded on the basis of religion-neutral criteria. Thus, reading footnote 3 together with Breyer’s concurrence, we have seven justices who clearly support state funds flowing to houses of worship and other religious entities on the basis of neutral criteria for security, health, safety and similar needs.

Today’s explicit endorsement by the court of the neutrality principle in government aid programs will enable those of us who advocate for new initiatives to aid the nonprofit sector in general – and religious nonprofits in particular – additional strength and a proven foundation for doing so.

One such initiative currently pending in Congress is legislation to overturn a policy (not mandated by federal statute) of the Federal Emergency Management Agency that denies federal disaster aid to houses of worship on the same, neutral terms as any other nonprofit. This equal-treatment legislation is bipartisan and should be passed quickly in the wake of today’s ruling. If the federal government has a public benefit program to assist communities in rebuilding unsafe, disaster-damaged buildings – including nonprofit facilities – surely they can no longer exclude houses of worship as a category.

There are measures pending in several state houses as well – from California to New Jersey – to provide funds to Jewish (and other) parochial schools to assist in their security needs. Such grants – modeled on the federal Nonprofit Security Grant Program – are clearly for the safety of children and cannot be diverted to “religious use” because they are for specific purposes such as purchasing fencing and bollards, installing surveillance cameras or hiring security guards. They too are clearly constitutional under Trinity Lutheran.

The free exercise and establishment clauses of the First Amendment were wisely crafted to ensure maximal religious freedom in the United States of America. Interpretations that functionally infringe upon religious exercise run counter to this foundational principle. Today’s ruling by the Supreme Court in Trinity Lutheran v. Comer affirms the founding principle in a commonsensical way – and charts a path toward appropriate state support for religious institutions by their advocates.

Recommended Citation: Nathan Diament, Symposium: Court ruling bolsters religious liberty… beyond the playground, SCOTUSblog (Jun. 26, 2017, 6:13 PM),