Terry H. Schwadron
Once again, I’m trying to clear the confusion in my head created by government actions.
Earlier this week, a Supreme Court decision, by a 7–2 vote, held that the state of Missouri could not withhold money for a playground resurfacing project to a church school, that its status as a religious school did not disqualify it for participation in the public program. It was a “secular” project, not support for a religious organization, the decision said.
But the government cannot include a religious institution to participate in a “secular” program like Obamacare to cover the cost of contraceptives as part of health care programs. Now the court has promised to take up the case of a baker who, for religious reasons, turned down a gay couple who wanted him to bake their wedding cake.
You’d think that keeping church and state separate is a pretty clear line, but it is being eroded all over the country mostly over the issue of whose ox is being gored at any particular moment. Objection to gay marriage or contraception for religious purposes and support for public tuition supports would seem to be contradictory, right?
In fact, advocates for private-school vouchers see Monday’s court decision, including Education Secretary Betsy DeVos, as a first step toward an end to state bans on using public money to pay tuition at parochial schools.
Writing for the majority, Chief Justice John G. Roberts Jr. signaled that the court was not responding to the wider issues, adding a footnote that the court was ruling on a case involving “religious identity with respect to playground resurfacing” and not taking a stance on “religious uses of funding.”
Alert voucher opponents say there are big differences between allowing public money for a community-wide playground project and public money for a church school, a religious purpose. Voucher proponents see hope for a Colorado case before the court that will test tuition supports.
In this case, Trinity Lutheran Church of Columbia, Mo. had sought a state grant to replace the gravel on its preschool playground with a rubber surface made of repurposed tires. The state said no because Trinity Lutheran is a church; the state constitution bans direct financial assistance to religious institutions. The new decision said that the state may not exclude churches from government programs that have a secular intent — such as children’s health and safety.
DeVos, a voucher supporter, “marks a great day for the Constitution and sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment. We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”
Wow, that kind of looks at the whole decision backwards.
Justices Clarence Thomas and Neil M. Gorsuch agreed with the decision, but criticized the footnote, arguing that the line between funding a religious institution and funding a religious purpose is fuzzy. Justices Sonia Sotomayor and Ruth Bader Ginsberg, who dissented, argued that the decision sets no useful distinction between a church’s facilities and the religious mission itself. “Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular,” Sotomayor wrote, adding that the majority decision “leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”
The Washington Post noted that more than three dozen states have constitutional provisions similar to that in Missouri that bar the use of public money for religious purposes. In some cases, those constitutions have been used to prohibit establishment of voucher programs. Some states have been successful at creating tools like tax-credit scholarships, which allow the government to indirectly — and therefore legally — support private and religious education.
I’d say we should pray for guidance, but that might be illegal.
What I do know is that it’s the first payoff on Mr. Trump’s investment of trust in a newly aligned Supreme Court.