With just a few days on the Supreme Court under his belt, America’s newest justice will hear arguments in a religious liberty case nearly 150 years in the making next week – one that could have a sweeping impact on a majority of state constitutions.
It all began with a church playground and some tire scraps.
The case of Trinity Lutheran v. Cromer started in January 2013 after the state of Missouri denied a preschool access to a statewide public safety program that provides recycled tires for playgrounds simply because the preschool was operated by a church.
In short, they wanted to remove the pea gravel surfacing encompassing the recreational space with safer – and much more boo-boo averse – tire scraps.
Why were they turned down? Because Missouri is one of the majority of U.S. states that have what’s known as a Blaine Amendment. These are legal relics from the 19th century that were dreamed up during a fervor of anti-Catholic sentiment in American history.
Now the question before the Supreme Court, now rounded out with Justice Gorsuch, is whether or not laws like those in Missouri that block public funds from going to religious organizations – regardless of the purpose – are indeed in line with the First Amendment.
The Blaine Amendment is named after former Speaker of the House James G. Blaine of Maine, who in 1875 proposed a constitutional amendment stipulating that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”
The policy initiative was a response to Catholic schools seeking equal footing in the public square for their desired academic and spiritual curricula. See, at the time, public schools were overwhelmingly Protestant in tone and curriculum; when Catholics asked for equal treatment in education, anti-papal politicians responded in kind.
While Blaine’s law never made it past the U.S. Senate, similar measures took hold in state constitutions across the country. Now some 37 states still have them on the books, leading to situations like that of the Trinity Lutheran playground.
Proponents of such amendments – like the Freedom from Religion Foundation, the ACLU, and the Satanic Temple – view these sorts of laws as a means of preserving the so-called “separation of church and state doctrine.” However, such a doctrine appears nowhere in the Constitution nor Bill of Rights (absent from the Philadelphia Convention), and didn’t make an appearance in the legal discussion until 1947. [See: Lee, “Our Lost Constitution”]
But Erik Stanley, a senior counsel at Alliance Defending Freedom and director of the group’s Center for Christian Ministries, says that what these kinds of laws effectively do is impose a harsher vision of the “separation of church and state” than the Constitution requires, while discriminating against organizations — which violates the Free Exercise Clause of the First Amendment.
“You can’t violate the Free Exercise Clause by trying to have some greater degree of separation of church and state at the state level,” Stanley explains. “Essentially, what Missouri is trying to do is say, ‘Well, upholding our definition of the separation of church and state in our state constitution is treating religion worse than everybody else.’”
One case that Stanley points to is a religious discrimination case from the 1970s in which an 18th century Tennessee law barred Paul McDaniel – a Baptist minister – from being a state constitutional delegate. In an 8-1 decision, the Supreme Court found that the Tennessee law violated the free exercise of religion by making McDaniel’s civil liberties conditional on his willingness to renounce his religious liberties. Therein lies the parallel between this case and a children’s playground in the Show Me State.
“There’s no valid, neutral reason to exclude Trinity Lutheran Church” from the tire scrap program, Erik Stanley said, saying that the church went through the application process and was highly rated for the program. “The only real reason to exclude them was because of their religious status, which is the same as what happened in McDaniel.”
Blaine Amendments don’t just keep playgrounds from getting publicly available safety equipment. Back in October I wrote about how a similar provision in Oklahoma is keeping kids with special needs from using public scholarship money at schools that fit them.
One such example was Wyatt Johnson – born three months premature, hearing imparted, and now a teenager – whose family spent years in litigation trying to get his public scholarship money to Metro Christian Academy in Tulsa. (Sooner State voters opted against getting rid of the law with a ballot initiative in November.)
Furthermore, if you let the logic behind these sorts of rulings play out fully, you run into all sorts of absurdities.
“If [Missouri] can deny Trinity Lutheran access to this neutral benefit program which has nothing to do with religion, solely because of the fact that it’s a church, then they could deny all kinds of things,” Stanley explains. “They could say that we’re not going to send the fire department to a burning mosque or that they’re not going to send police to a synagogue break-in, because those are also neutral benefits that provide aid to religion.”
The question on everyone’s mind now is how Justice Gorsuch will rule in one of the most consequential cases of his first term.
Throughout his months-long confirmation process, Gorsuch’s record on religious liberty as a circuit judge was praised by First Amendment advocates. Now, as a jurist charged with the most difficult legal questions facing our republic, those who awaited his appointment with bated breath will finally get to see how he will rule on an issue so clouded in stigma and misconception.
Stanley is optimistic about the outcome of the case, saying Gorsuch “proved himself to be a friend of religious liberty in how he ruled on the 10th Circuit court,” and that the ADF team has “every reason to believe that he’ll continue that at the Supreme Court.”
Oral arguments in the case are scheduled for April 19.