How the Coming Church-State Showdown Could be Avoided
The Supreme Court has ample reason to avoid deciding a case that could erode the Establishment Clause.
During argument in Trinity Lutheran Church v. Comer last week before the Supreme Court, Justice Elena Kagan mused that the case poses “a hard issue. It's an issue in which states have their own very longstanding law. It's an issue on which I guess I'm going to say nobody is completely sure that they have it right.”
The court did not pay much attention to a question that logically flows from Kagan’s concern: Is this trip really necessary?
Does the court really need to jump into this dispute between a church and a state government—or is it a case where the two parties basically have already kissed and made up?
Missouri’s Constitution, as written in 1875 and readopted in 1945, contains a provision that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” The Missouri courts over the years have interpreted this provision quite literally. As a result, a church named Trinity Lutheran in Columbia, Missouri, was denied a state grant to resurface their daycare playground with recycled rubber tires. (The daycare would have been eligible if it had been run by a separate church-affiliated non-profit; but because in this case the money would have gone directly to the church, the provision applied.) The church sued, and the case has wended its way to the Supreme Court.
Apparently fearing a 4-4 split, the court delayed hearing the case for more than a year. Last week, Trinity Lutheran got its chance to explain to a full set of nine justices that the state’s constitution forces the church “to choose between exercising their religious faith and receiving a public benefit.”
The church was represented by David A. Cortman, senior counsel of the religious-right powerhouse Alliance Defending Freedom. I don’t question that ADF is deeply concerned about playground injury, but its agenda is broader. Much of its advocacy is concerned with creating religious-based exemptions to regimes of protection for LGBTQ people, with broadening the ability of Christian majorities to bring religion into public life and policy, and with empowering Christian parents in their dealings with public education.
Some 40 U.S. states maintain constitutional provisions like the one at issue in How the Coming Church-State Showdown Could be Avoided - The Atlantic:
