More than 14 months after the death of Justice Antonin Scalia, the Supreme Court has finally returned to full strength — just in time to consider what may be the most significant case of an otherwise quiet term.
On Wednesday, nine justices, including the court’s newest member, Neil Gorsuch, heard oral arguments in a religious-liberty dispute that, at first glance, looks unremarkable.
In the interest of child safety, Missouri provides a limited number of state grants to playground operators to replace hard surfaces with rubber. Trinity Lutheran Church, in the town of Columbia, applied for one of those grants in 2012 to upgrade the playground for its day care and preschool. The state refused to provide the funds because Missouri’s Constitution bars spending any money “directly or indirectly, in aid of any church.”
The church sued, arguing that the prohibition violated both the First Amendment and the Equal Protection Clause of the 14th Amendment of the United States Constitution. The state countered that the church was free to practice its religion without interference; it just couldn’t demand that taxpayers subsidize it.
If the court invalidates Missouri’s prohibition — versions of which exist in the constitutions of 38 other states — the effects could reach far beyond playground surfaces. For starters, religious schools would have a much easier time taking advantage of state-funded voucher programs, which are likely to grow under the Trump administration.
But avoiding direct payments of government cash to churches is central to protecting religious freedom, a concept America’s founders understood all too well. James Madison, who wrote the First Amendment, said government should not “force a citizen to contribute three pence only” in support of a religion. If it does, both sides are harmed — religions and sects battle each other for government cash, while the state finds itself forced to meddle in religious affairs, where it has no business.
For this reason, state and federal laws treat religious organizations, particularly houses of worship, differently — and often favorably. Trinity Lutheran may not like being prohibited from getting public funds to upgrade its playground, but surely it has no problem with, say, receiving special tax exemptions.
In recent years, however, a push from religious advocates, primarily Christian, has distorted the idea of “religious freedom” to apply in any situation in which they think their beliefs should trump everyone else’s interests.
The Supreme Court itself has moved toward endorsing this view. In its 2014 Hobby Lobby decision, a five-justice majority ruled that a family-owned for-profit corporation could invoke religious beliefs to refuse to comply with government regulations — in that case, the Affordable Care Act’s requirement that employers provide contraceptive coverage to female employees. The appeals court ruling that the justices upheld in Hobby Lobby was joined, not incidentally, by Neil Gorsuch, who also wrote a separate concurrence.
The status of the current case, Trinity Lutheran Church v. Comer, was complicated on April 13 when Missouri’s new governor, Eric Greitens, reversed state policy and made religious organizations eligible for state funds. That could have ended the legal dispute, but both sides argued that the court should still rule on it.
That was only the latest twist for the case, which the court agreed to hear back in January 2016, less than a month before Justice Scalia died. The justices delayed hearing it until now, presumably out of a concern that an eight-member court would split evenly and be unable to issue a decision.
In light of Wednesday’s arguments, during which all but two justices appeared sympathetic to the church’s position, that fear may have been misplaced. And with Justice Gorsuch now on the court, advocates for the recently evolved, misguided notion of religious freedom are feeling a lot better about their chances.
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