Monday, June 26, 2017

SCOTUS finds for Trinity Lutheran; expect to see cases on the Blaine (anti-voucher) amendments

I'll update this post as more comes in. 
The Supreme Court has decided in favor of Trinity Lutheran on a case that involved access to recycled tire scraps (for playgrounds); you can read the full decision here. The case was decided 7-2, Sotomayor and Ginsberg dissenting. The decision was written by Chief Justice Roberts and reads as follows:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.
Why do we care? As has been bandied about repeatedly over the past few months, there is some connection between this and the argument over school vouchers; thus allowing access to state grants for a religious institution could clear the argument for state support for religious schools.

As always, I'm not a lawyer, but I'm seeing some disagreement with our reading that direction in the decision itself; note for example this footnote:
This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.
One should note, however, that Justice Gorsuch dissents specifically from that footnote.

The larger dissent, written by Sotomayor, is well worth reading:
To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.
Sotomayor does see this as opening up the possibility of further cases; see the footnote:
The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use.
And the conclusion:
If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.
More as I find it.

Peter Greene comments that churches will "rue the day" of this, as money usually doesn't come without strings:
The separation of church and state doesn't just protect the state-- it protects the church, too. When you mix religion and politics, you get politics. And where federal money goes, federal strings follow. Sooner or later the right combination of misbehavior and people in federal power will result in a call for accountability for private schools that get federal money-- even religious schools. And as the requests for private religious vouchers roll in, folks will be shocked and surprised to find that Muslim and satanic and flying spaghetti monster houses of worship will line up for money, then the feds will have to come up with a mechanism for determining "legitimacy" and voila! That's how you get the federal department of church oversight.

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