March 2016 Church & State - March 2016

Shredding The First Amendment?

  Simon Brown

Four years ago, officials at Trinity Lutheran Church in Columbia, Mo., decided they would like to resurface a playground at the church’s religious preschool – and that taxpayers should pick up the tab for it.

Under a state program, aid was available for such projects through a program that awarded grants to purchase recycled tires – but not for houses of worship. The church sued, and its attorneys at Alliance Defending Freedom (ADF), a large Religious Right group, made a startling claim: The church has a constitutional right to taxpayer support.

“Missouri and every state should understand that the U.S. Constitution prohibits religious hostility, which is what Missouri exhibited when it denied Trinity Lutheran’s scrap tire grant application,” Erik Stanley, an ADF attorney, said in a recent statement. “This case has huge implications for state constitutional provisions across the nation that treat religious Americans and organizations as inferiors solely because of their religious identity.”

Far from a frivolous squabble over old tires, the case could, if the Religious Right has its way, become a blockbuster that dramatically impacts how religion and government interact when it comes to taxpayer assistance.

The U.S. Supreme Court in January announced that it will hear an appeal of the case, Trinity Lutheran Church v. Pauley. The ramifications could reach far beyond a playground in Missouri.

At the heart of this case is Article I, Section 7 of the Missouri Constitution, which states: “[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof” and that “no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.”

That type of provision, often referred to as a “no-aid” clause, is not unusual. In fact, about three-fourths of the states have them. These clauses reflect a longstanding concern in the United States that religion should pay its own way and not rely on taxpayer support.

In 1785, for example, James Madison wrote the “Memorial and Remonstrance Against Religious Assessments,” essentially a list of 15 reasons why no one should be forced to pay taxes to support churches.

Language that reflected the spirit of Madison’s concerns found its way into many state constitutions. The move accelerated in the post-Civil War era as public education took hold in the United States.

Massachusetts and New York passed the first mandatory school attendance laws in 1852 and 1853 respectively, but the drive didn’t really take off until after the war. By 1918, all states then in existence had some sort of compulsory attendance law.

Even then lawmakers were being lobbied by religious school advocates who hoped to win government support for their private institutions. As early as 1838, a Roman Catholic official in New York sought government subsidies for Catholic schools. Bishop John Hughes insisted that existing public schools were infused with Protestantism, making them unsuitable for Catholic students, and thus Catholic schools should receive subsidies from the state.

Some political leaders of the time proposed removing the “non-denominational” Protestant exercises that then occurred in some public schools to make them more tolerable to Catholics. In 1875, President Ulysses S. Grant went so far as to back an amendment to the U.S. Constitution that would require states to maintain a secular public-school system and prohibit tax aid for religious schools.

A version of Grant’s amendment was introduced in Congress by James G. Blaine, who was then Speaker of the House of Representatives. A Maine Republican, Blaine pushed an amendment that focused on barring tax aid to sectarian institutions. The amendment would eventually pass the House, but it fell short in the U.S. Senate.

In the modern era, the push for what became known as the “Blaine Amendment” is often portrayed as an anti-Catholic crusade. The truth is much more complicated. While a certain degree of anti-Catholicism was prevalent in the United States during the 19th century, there is no evidence that Blaine himself was personally anti-Catholic. (He was a nominal Presbyterian, but his mother was Catholic and he sent his daughters to a Catholic-run boarding school.)

Clauses prohibiting public funding of religious schools were included in the constitutions of several Western states, though some of these clauses had language significantly different from that of Blaine’s proposed amendment. All these clauses were designed to underscore the point that in America, religion had to finance itself. There could be nothing like church taxes in the United States.

Despite this history, advocates of government aid to religion continue to attack state no-aid provisions as anti-Catholic – even though they are applied equally to all religions. The same amendment that bans aid to a Catholic school also bars it to Baptist, Jewish and Muslim institutions.

“Blaine amendments are a dirty little secret from the anti-immigrant past,” Kevin J. Hasson, founder of the far-right Catholic legal group Becket Fund for Religious Liberty, told The New York Times in 2002. “They not only get in the way of vouchers and prohibit other sorts of useful aid, but they enshrine bigotry in many state constitutions.”

While Missouri’s no-aid clause has been a part of that state’s constitution since 1875, some states, such as Michigan, have versions of the clause that are much older. Steven K. Green, a former Americans United legal director who has researched the history of no-aid amendments, told Church & State previously that in the 1820s a debate in New York City over funding of day schools led city lawmakers to restrict funding to non-sectarian institutions. The issue arose when a Baptist church sought to open a school for low-income children using public funds.

“The origins of the ‘no-aid’ rule pre-date by about 10 years the first drive by the Catholic Church to receive funding for its schools,” Green, now a law professor at Willamette University College of Law in Salem, Oregon, said. “That does not deny the fact that the concept was sometimes used against Catholics, but the constitutional principle against funding religious institutions developed apart from anti-Catholic animus.”

While the U.S. Supreme Court may look at the history of no-aid amendments when it weighs the facts in Trinity Lutheran, it may find it improper to do so because the church didn’t raise that history earlier in the proceedings.

The federal courts that have ruled in the case thus far have focused on the Missouri Constitution and the First Amendment – which hasn’t been to the church’s advantage. After Trinity Lutheran’s application for a recycled-tire grant was denied, the group filed suit in 2013 with help from ADF. In September of that year, the U.S. District Court for the Western District of Missouri’s Central Division tossed the case. In its decision, the court noted that the playground where the scrap tires would have been placed is part of a pre­school that “is a ‘ministry’ of the Church that directly instructs students in the Church’s religious beliefs.” The court also upheld the Missouri Constitution’s no-aid clause.

“Section 7 clearly prohibits public money from, directly or indirectly, going to aid a church, sect, or denomination of religion,” wrote Judge Nan­ette K. Laughrey, an appointee of President Bill Clinton. “Trinity’s own pleadings demonstrate that funds from Pauley’s department in the form of the Scrap Tire Program would aid the Church and its ministry Learning Center within the meaning of Missouri law. As the Missouri Constitution prohibits such aid, the Department’s refusal to grant it cannot be considered discrimination….”

Despite that clear rejection, ADF pressed ahead and appealed to the 8th U.S. Circuit Court of Appeals. But once again, the church was dealt a defeat. In a 2-1 decision announced in May 2015, the appeals court agreed with the lower court’s findings.

“[I]t is apparent that Trinity Church seeks an unprecedented ruling – that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church,” wrote Judge James B. Loken, an appointee of President George H.W. Bush. “To prevail, Tri­nity must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent.”  

And yet, the U.S. Supreme Court decided to examine Trinity’s argument. Since it takes only four votes to place a case on the court docket, the decision to hear the appeal could be an effort by high court conservatives to force the issue.

The court’s own recent precedent would seem to go against Trinity Lutheran. In a 2004 decision in a case called Locke v. Davey, the high court ruled 7-2 that a Washington state law preventing college students from using state scholarship funds to obtain a theology degree did not violate the U.S. Constitution, even though the First Amendment would not bar that particular use of taxpayer money. Observers also note that most lower courts have since interpreted Locke as allowing states to block public funding of religious schools through vouchers, even though the Supreme Court has ruled that the U.S. Constitution allows that type of funding. The high court could use the Trinity Lutheran case to issue a decision to chip away at the precedent in Locke.

The justices may decide to issue an opinion that includes new ideas about the extent to which the First Amendment prohibits the funding of religious organizations. Once again, a rather recent case serves as precedent for this issue. In the 2000 decision in Mitchell v. Helms, the court upheld a program that provided secular school supplies and materials to both religious and non-religious private institutions under the reasoning that the supplies and materials were not used for religious instruction.

The Supreme Court could once again reach a similar decision in regard to Trinity, ruling that the church may receive public funding in this instance as long as further proceedings in the case do not show that the playground is used for religious activity. The court could, however, issue a broader ruling that more extensively describes the circumstances in which the U.S. Constitution bars or permits public funding of religious activity.

Religious organizations already receive various types of public support. Voucher plans are operating in several states, for example. But in the past, the Supreme Court has left it to states to interpret their own constitutions in dealing with aid to religious organizations. After all there’s a world of difference between saying a state may aid religious entities under certain conditions and mandating that it must. What opponents of church-state separation seek in this case is nothing short of a ruling giving religious organizations a legal right to demand public aid in some cases.

Given what is at stake, Americans United will file an amicus brief in the case – and watch the proceedings very closely.

“We were surprised that the Sup­reme Court took this case, and we are definitely concerned that the Sup­reme Court has taken this case,” Alex Luch­enitser, associate legal director for Americans United, told The Washington Times recently. “It is possible that this case could erode state constitutional restrictions on the public funding of religious institutions.”

While the outcome of the case is anyone’s guess, Luchenitser said the high court could decide that in “circumstances where the funding does not actually support a religious facility or a religious activity or religious teachings…the states cannot treat religious and nonreligious institutions differently in deciding who can get public funds.”

Luchenitser added that Americans United “wouldn’t support such a ruling; we’d be disappointed. But it would be better than a more expansive ruling that erodes the state constitutional provisions to a greater extent.”

The aims of Trinity Lutheran’s attorneys and allies are clear. They seek nothing less than a fundamental alteration of the very idea of church-state separation as it applies to taxpayer funding of religious entities. We’ll know whether they succeed in making progress toward that goal when the Supreme Court issues its Trinity Lutheran decision, most likely late this year or in 2017.                       

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