Thursday, February 16, 2023

SCOTUS Justices Clarify The Boundaries Between Church And State


The First Amendment of the Constitution addresses religious matters in the following statement: 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [.]”
And for brevity and clarity in the logic of legal arguments, I will refer to the establishment clause and the free exercise clause.
That bold statement contains merely 17 words but in the 231 years since 1791, hundreds of federal law suits have found their way to the U.S. Supreme Court. And the justices have elaborated on what those 17 words mean and how the boundary between church and state is supposed to work. 
Certainly, politics and religion are an awful combination of intensely held uncertainties. SCOTUS is about law, reasoning, and logic and when applied to the boundaries between church and state—well, it’s an important, daunting task.
My goals for this blog are to:
Display the logical reasoning in the SCOTUS case of: TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES. Brevity title is: Trinity Lutheran Church v. Comer.
Display the highly refined style of the specific referral question the justices must answer.
Provide some historical perspective and context for the American experience of religion and government. Learn that Congress can make and modify laws which define the term “religion” and where and/or how it can be exhibited.

The First Amendment says Congress cannot establish (put into law to make happen) an official religion or religious activities. And the First Amendment also says Congress cannot prohibit (outlaw or prevent from happening) the exercise of (doing or performing) religious activities. If you ponder these two concepts you might begin to feel or see that they result in some contradictions.

Trinity Lutheran Church, located in Missouri, had a daycare center and preschool, and the preschool had a playground with a rough surface of pea-sized gravel. The roughness of that playground surface sometimes led to skinned knees. And, Trinity Lutheran Church learned that the State of Missouri had the Scrap Tire Program [recycling] which made a rubber surfacing compound. Missouri created a program by which nonprofit organizations could apply for a grant to get reimbursed for installing the rubber surfacing compound on their playgrounds; such a grant is called a government benefit
Trinity Lutheran Church applied for a grant and they were given a high score—fifth out of 44 grant applicants. But they were turned down because the Missouri Scrap Tire Program strictly prohibited giving grants to any applicant owned or controlled by a religious organization; this was in accord with the Missouri constitution. 
In Federal District Court, Trinity Lutheran Church sued the Missouri Department of Natural Resources alleging that they violated the free exercise clause of the First Amendment as well as the Fourteenth Amendment’s Equal Protection Clause; Trinity Lutheran asserted that a playground is not a church and, therefore, the Missouri government isn’t establishing religious practice by awarding a grant for playground resurfacing. But the Federal District Court agreed with Comer and disagreed with Trinity Lutheran.

Trinity Lutheran appealed to the Federal Circuit Court, which:
Made reference to a previous SCOTUS decision, Locke v. Davey, which said it’s not necessarily a violation of free exercise of religion to deny a government benefit to a church.
The Federal Circuit Court affirmed the Federal District Court’s decision. Trinity Lutheran lost.
Trinity Lutheran appealed to the Supreme Court, which agreed to hear the case.

Since over 50 years ago, all SCOTUS justices have been attorneys and most of them have come from the most prestigious law schools in America. When they perform their work on a case they will have:
Read background material, listened to oral arguments by the plaintive and respondent attorneys, and read a draft opinion by their own law clerks (who are themselves highly qualified, young attorneys). 
The nine justices meet and share their thoughts on how they would vote on the case before them and answer the referral-question of the case. By the end of this meeting, most of the justices can mostly figure out how everyone is likely to vote. The Chief Justice will assign a justice to write a majority opinion. 
Concerning our case of Trinity Lutheran V. Comer, each justice would join the majority opinion, or a dissenting opinion, or write a separate opinion of their own and join either the majority opinion or the dissent. 
Each judge will have answered yea or nay to the referral question presented, which is: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran Church’s grant application ranked fifth out of 44 grant applications, but they were “categorically disqualified” because they were a church and the Missouri Constitution stated that, “no money shall ever be taken from the public treasury, directly or indirectly in aid of any church, section or denomination of religion.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023 from https://www.oyez/cases/2016/15-577)

Legal Precedents Are Used To Make Valid, Logical Conclusions By Analogy
A legal precedent is a previous court decision in a different but similar type of case. When the two cases are similar in their essentials, the court can use the old case to logically infer that the new case should be decided similarly to the old case. SCOTUS justices are fully capable of using this process correctly; but there may be some small differences between the cases which result in dissents rather than concurrences.
In Locke v. Davey (2004) SCOTUS did not overturn a Washington College’s denial of a scholarship for graduate study of “pastoral ministries.” Washington State prohibited public funding for “religious worship, exercise or instruction.” Davey lost his case not because of what he believed religiously, but because of what he wanted to become, a minister. Public money could help fund, for example, his becoming a teacher in a wide variety of subjects; but, public money could not fund him for becoming a minister. 
The SCOTUS majority found the Federal District Court wrong in finding that Locke v. Davey showed that the free exercise clause didn’t require giving a grant to Trinity Lutheran. The free exercise clause requires that the “strictest scrutiny” be applied whenever “special disabilities” are applied as a result of “religious identity” (Church of Lukumi Babalu Aye, Inc v. Hialeah 1973). The ultimate result of these two precedents is that a public benefit cannot be withheld from an organization just because it’s a church. The District Court had made an argument by analogy from Locke v. Davey to Trinity Lutheran Church v. Comer but the District Court failed to account for the implications of strict scrutiny.
Everson v. Board of Education of Ewing (1947) involved an Establishment Clause challenge to a New Jersey law which allowed local school districts to reimburse parents for public transportation of their children to either public or private schools. This was a public benefit to all parents of any religion or no religion at all. If there is public transportation for either atheists or Christians, for example, then to deny the public benefit of transportation to schools for Moslems would be penalizing a religious group.

Precedents May Also Contain Fundamental Logical Structure 
Of "If This, Then That" Procedures
If-then statements are not hard to understand: whenever a specific condition exists then something else happens. For example, IF because of a religious identity issue some rights or benefits result, THEN the procedure of “strictest scrutiny” must be applied. Here’s the definition of strict scrutiny from the First Amendment Encyclopedia website: 
Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. Strict scrutiny also is used when a law targets a specific religious faith.

The SCOTUS Conclusion in Trinity Lutheran Church v. Comer
The referral question was: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.
SCOTUS answered the referral question by concluding that: The [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.
This was a 7-2 decision in favor of Trinity Lutheran Church. It was not a close decision. The majority opinion was written by Chief Justice Roberts and he was joined by Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch. Dissenting were Sotomayor with Ginsburg concurring in the dissent. I chose not to discuss the dissent because many of its claims are not convincing or are overstated. It does make a valid point that the majority’s opinion “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
I did not discuss the several concurrences because they focus on relatively minor points.

It is not at all easy to read and fully understand the background and logic of SCOTUS decisions. When I first read through the majority opinion I highlighted much of it as wrong! I had to work hard to understand how actual historical facts and the precedents spanning many decades make the Trinity Lutheran Church v. Comer decision a correct one. It turned out I was naïve on several important aspects of church and state constitutional law. 
Trinity Lutheran Church v. Comer displays clear logic and use of precedents. It includes discussions of the important procedure of applying strict scrutiny. 
The majority opinion is clearly and believably correct especially when focusing on what justice Breyer wrote in his concurrence: “[T]he First Amendment was clearly not meant to prevent religious organizations from accessing government-provided benefits such as police and fire services. The benefit here was for the health and safety of children and therefore was in the same class of government-provided services that religious organizations should be able to access.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023, from


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