Will SCOTUS Undermine Separation of Church & State?

“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” – Thomas Jefferson, 1802


The case seems fairly simple, fairly straightforward, on the surface.

separation-3In the interest of child safety, Missouri provides a limited number of state grants to playground operators to replace hard surfaces with rubber. All was going well, until 2012, when Trinity Lutheran Church, in the town of Columbia, applied for one of those grants and was turned down on the basis of Missouri’s Constitution, which 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.

Now, I could actually argue this one either way … there is no clear-cut right or wrong here … it is truly a matter of conflicting Constitutional clauses.  The church’s argument that to deny them funds for their playground is in violation of the Equal Protection Clause, has merit. The Equal Protection Clause states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

On the other hand, I could just as easily side with the argument of the State of Missouri, whose constitution bars spending public money “directly or indirectly, in aid of any church,” and the state Supreme Court has called for “a very high wall between church and state.” 

It might seem to the casual observer that, for the small amount of money we are discussing, and the fact that the safety of children is involved, it would be a simple enough solution for the State of Missouri to give the church the grant, rather than use precious resources (time & money) to hear the case in the U.S. Supreme Court.  But beneath the surface, this case could open doors that could lead to the erosion of one of the basic principles in the First Amendment, Separation of Church and State.

While it is true that the term “separation of church and state” does not appear in the Constitution, 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. And of course, you can see Thomas Jefferson’s quote at the start of this post.

separation-2What are those doors this case could open?  There are so many.  Let us start with the simplest, the core of this case, grants to upgrade playgrounds.  So, if Trinity Lutheran Church prevails, then others will also seek grants from the state.  Okay, fine, you say … but what happens when a Jewish Synagogue requests a grant?  Missouri is 85% white, 77% Christian, with less than 1% of its population Jewish.  How do you think those white Christians will feel about their tax dollars going to upgrade playgrounds at Synagogues in this day of increased anti-Semitism?  Now let us go a step further … what happens when a Mosque requests a grant in this predominantly white, Christian state, at taxpayer’s expense?

Under newly appointed Secretary of Education, Betsy DeVos, school vouchers are likely to become an issue along these same lines. The decision in Trinity Lutheran could influence the debate over school vouchers. “For a long time, it was thought that the federal Establishment Clause stood in the way of school-voucher programs that allowed religious institutions to participate,” said Rick Garnett, a professor of law and political science at Notre Dame University. “Over time, in the late ’80s and through the ’90s, the court’s doctrine evolved.” In the early 2000s, he said, the Supreme Court ruled that the Establishment Clause doesn’t allow the government to directly fund religious activities, but it’s not a problem if people use state-funded vouchers to attend private religious schools. That could all change, depending on the ruling of the Supreme Court in this case.

And then there is another angle. Lambda Legal, the LGBT-rights advocacy firm, argued in a brief that a decision in favor of Trinity Lutheran could lead to discrimination against the LGBT community. Some churches “don’t wish to serve everybody,” said Camilla Taylor, a senior counselor at the firm. If the states provide grants to churches like Trinity Lutheran, “government funds will then be used to provide social services on a discriminatory basis.” 

It is, in essence, a highly-charged slippery-slope argument.  Where do you draw the line?  If government funds are provided to one church … any one single church or religious establishment … then they must equally be provided to all.  Do we really want to start down this slippery slope?  And do we want to tie up state and federal legislators, not to mention the entire court system, debating where to draw the line, or how to deal with these issues?  I think not.

In 2014, the Supreme Court heard the case of Burwell v. Hobby Lobby Stores, Inc., in which Hobby Lobby objected to the Affordable Care Act’s requirement that employers provide contraceptive coverage to female employees. The Supreme Court, in a 5-4 decision, ruled in favour of Hobby Lobby, allowing closely held for-profit corporations to be exempt from a regulation its owners religiously object to if there is a less restrictive means of furthering the law’s interest. It was the first time that the court has recognized a for-profit corporation’s claim of religious belief, but it is limited to closely held corporations.

There are three central concepts derived from the 1st Amendment which became America’s doctrine for church-state separation: no coercion in religious matters, no expectation to support a religion against one’s will, and religious liberty encompasses all religions. There is also a three-pronged test to determine whether government action comports with the Establishment Clause, known as the “Lemon Test”. First, the law or policy must have been adopted with a neutral or non-religious purpose. Second, the principle or primary effect must be one that neither advances nor inhibits religion. Third, the statute or policy must not result in an “excessive entanglement” of government with religion.  It is my belief that the case of Trinity Lutheran Church of Columbia v. Comer meets the first two criteria, but not the third.  I foresee future struggles, if this case is decided in favour of Trinity Lutheran, that would lead to far more ‘entanglement’ than would be economical or feasible for this nation, and would only add to the divisiveness that is so prevalent today.  Of course, I am not a Supreme Court Justice, so my opinion does not count, but this will be the first case that newly-appointed Justice Neil Gorsuch will hear as a Supreme Court Justice.  There is little doubt how he will vote. The appeals court ruling in the Hobby Lobby case was joined by none other than Neil Gorsuch, who also wrote a separate concurrence. From what I have read, it appears that the outcome is likely to be in favour of the church, as only two of the Justices seemed strongly inclined to rule against.

My hope, if the court rules in favour of the church, is that the decision is written in such a way as to narrowly limit future cases of this nature.  It is one to watch.


26 thoughts on “Will SCOTUS Undermine Separation of Church & State?

  1. Looking at the original point in pure administration terms it would seem to be a simple answer. As the playground is not actually a place of worship and the health & safety of children is a paramount duty of a govt administration a grant could be made, and if the government in question is queasy that this might open flood gates they can draft a qualifying statement which leaves no wriggle room for opportunistic advantage takers.
    I guess this is one situation where having a state religion and no written constitution works

    Liked by 1 person

    • Yes, I do agree that, on the surface and at the original point, it should be a non-issue. But … sigh …. you and I both know that nothing can ever be simple and straightforward. While I would not resent my tax dollars being spent to make a playground … ANY playground … safer for children, I would, however, start to balk when funds were diverted from public schools into churches, especially those churches that discriminate against, say, Muslims and LGBT people. It’s another of those slippery slopes … the certainly seem to be a lot of them these days, don’t there? … where do you draw the line? The problem, today more than, say, a year ago, is that we cannot trust our ‘leaders’ to make judicious and fair decisions. Sigh. A conundrum, if ever there was one.

      Liked by 1 person

      • Seriously Jill, I guess these issues will arise when there is a written constitution, and as you say there is the ‘leadership issue’.
        Back in the 1980’s I recall a US cartoonist with a double-panel cartoon…..
        To one side: current day staffers, one saying ‘Of course we cannot be sure of what was in the truly minds of the Founding Fathers on this aspect of the Constitution’
        On the opposite side: Benjamin Franklin saying to a group of men ‘Of course we can never be sure what some Yo-Yo in two hundred years time will make of this,’

        Liked by 1 person

        • I have searched and searched for that cartoon, but with no luck so far. I am thinking that might well make THE MOST popular comic strip of 2017, if somebody could re-create it! Love the idea. I have the thought often of wondering what the framers of the Constitution would think if they saw our government today! Hmmmm … you sure do know how to make a person start the rusty brain up, don’t you? 😀

          Liked by 1 person

          • All I can remember is that is was in Newsweek in the 1980s….🙂
            From that which I have read of the concerns of the Founding Fathers what has happened in the recent political high jinks over the past years is exactly why some were not for universal suffrage (And just in case any Yahoo from the Alt Right reads this, they were not referring to race or women, but the uneducated mob)

            Liked by 1 person

            • I shall look in the Newsweek archives, then! And yes, the framers of the Constitution were very much concerned that somebody like Trump would eventually be elected, and thus they built in a safeguard … the electoral college! The VERY THING that was supposed to stop this madness, only helped him! He was short nearly 3 million votes, but the electoral college system put him in office. Just goes to show … … … well, I’m not sure what it goes to show, but something. I’ll probably remember where I was going with that thought in an hour or two. 🙂

              Liked by 1 person

                • Ah, quite so. At the time, women were not considered mentally capable of making sound decisions outside the kitchen, and those whose skin colour was, shall we say darker, were counted as only 2/3 a person, and not considered fit to vote. What a screw-up we made of things when we classified women and blacks as ‘people’, yes? No, he will not be the first, and presumably not the last. There is all sorts of talk about doing away with the electoral college system, but I see no action. And … now that Gorsuch is on the SCOTUS, there is unlikely to be any. I just want to see the majority who do not lick Trump’s boots and kiss his posterior stand firm and speak loudly … especially next year in November!

                  Liked by 1 person

                    • Agreed. I suspect the first threat will come much sooner than the mid-terms … probably by the end of the year. It’s odd … he goes nuts and seems to be on the brink of a complete meltdown, then we hear nothing for a few days, then he goes back to just his normally obnoxious self. Then, after a few weeks and some perceived insult, he builds up to acting totally mad again. Some psychological disorder? Or his keepers bring him back under control? All I know is this pattern makes for a very unstable nation, and a potentially dangerous situation. Sigh.

                      Liked by 1 person

                    • Well, I agree, but I DO think there is some mental illness, or at the very least mental instability there. How else to explain some of his absolute craziness? For example, earlier today he said that Andrew Jackson could have stopped the Civil War. Problem is, Jackson died 16 years before the start of the Civil War. I cannot wait to see how Sean Spicer spins THAT one tomorrow!!! If nothing else, Trump has kept me with plenty of material about which to write! 😀

                      Liked by 1 person

                    • Wellllll, if Jackson had had his way the Electoral College would have been abolished, which I suppppose would have changed the political landscape.
                      It would seem that President Trump was wondering about an alt history wherein Jackson was born later and was thus president around the time of the 1850s….
                      However since President Jackson did send ships into Charleston Harbour in 1830 when South Carolina was being difficult over tariff legislation, and how does that sound faintly familiar??????? 🙄 🤔
                      I think the Whitehouse should gloss over that one and talk about North Korea 😶

                      Liked by 1 person

                    • Hahaha … actually, they ducked it this morning. Spicer walked out of the press briefing without so much as a comment or a question. It has been much discussed in the media, but nary a word from the administration! Guess they couldn’t spin it, so they are hoping we will move onto some other topic. We are being “led” by a circus … a joke … a con artist … and a bully! Aaaaarrrrrgggghhhh!

                      Liked by 1 person

                    • I wonder what moves are being made in the shadowy corners? Some operators must be lining up a ‘re-alignment’ (downfall) of some sort. The whole situation could become tailor-made for an upset, unless The Whitehouse wises up.

                      Liked by 1 person

                    • Who knows what is going on inside the WH? I don’t look for them to wise up, but when the prez can just keep signing executive order after executive order removing more and more of our rights, when he can bully and browbeat Congress to bend to his will, perhaps it doesn’t matter whether they wise up or not. And when he still has the support he has among groups of people who apparently fail to understand the ramifications of his actions, but simply applaud his rhetoric …. I really do not recognize this country anymore. Sigh. I have invites from friends in Canada and the UK … if I were younger, I would be considering a move … Sigh, again.

                      On a brighter note … I was reading something earlier today and thought, without thinking about it, Oh My Sainted Aunt! 😀

                      Liked by 1 person

                    • Take heart Jill. The US, We The People, are bigger than this. In Unity & Resolve there is strength.
                      UK as an emigration option is not worth the effort:
                      We have the Loud-Mouthed Right, who make it impossible for the Intelligent Right to be heard. And of course we have an election which means intelligent debate is on the back-burner.
                      We have the equally loud Fashionable Left and The Trend Warriors who make it a habit to target Americans (for anything) while displaying all the bigoted ignorance of their mirror images on the Right.
                      And we drive on a different side of our comparably tiny roads.
                      Having said that, on the plus side we do have HM Queen Elizabeth II and as a nation we worry about the hedgehog population.

                      Liked by 1 person

                    • Well, it is certainly true that there is strength in unity & resolve … however, you must remember that there is little unity in this nation anymore, and while there is a great deal of resolve on the part of most, those who are most resolved are pulling in opposite directions.

                      Certainly, however, I shall re-think the UK as an option for relocation after reading your colourful depiction! Actually, it wouldn’t deter me a bit … except that it would be rather a case of jumping out of the frying pan and into the fire, as my mother used to say. So, were I actually to relocate, I guess it is Canada! I do rather like PM Trudeau, and my friend Emily is encouraging me to come occupy her basement! Alas … my family is here, meaning my heart is here, so I guess I shall just keep ranting and pounding the keys! O woe, woes, thrice woe! 🙂

                      Liked by 1 person

                    • Difficult indeed Jill.
                      To paraphrase a line from the American War of Independence.
                      “These are times that test peoples’ souls”
                      We’ve just our ‘Local Council’ elections- basically we vote on who runs towns, or counties- Conservatives (govt) did very well Labour did badly. Whether this will be mirrored in the General Election remains to be seen…. In the event of an Upset…. Whether Labour would do any better…..’tis a moot point…
                      One should retain an air of gravitas, and go hunting sobering Latin phrases for use in conversation….

                      Liked by 1 person

                    • From what little I have read … and it HAS in fact been little … the polls are showing the Conservatives set to win next month. But … that can all change in the blink of an eye. I am shocked … simply shocked … to hear you calling for “an air of gravitas” … you who keep reminding me that we must maintain our sense of humour! Sigh. But methinks you were likely joking. 🙂

                      Castigat ridendo mores … 😀 😀 😀


                    • Oh I was indeed!
                      They can be fun when you use them slightly out of context just to annoy someone who fancies themselves as a scholar
                      (It’s an ambition of mine to find out the correct Latin translation for the old English North Country greeting of ‘How’s your belly for spots?’ and use that in a debate….Castigat ridendo mores!!) 🙃 ☺️


    • I, too, strongly support separation of church and state. Without it, we would be doomed to become a nation even more divided, with even more hatred and intolerance than we currently have.

      I agree with you on Pence, given his history as Governor of Indiana. However, I still believe he is less dangerous overall than Trump. He is not as much a bully, and I believe it would be easier for Congress and SCOTUS to counter his views. I could be wrong (I often am!), but I just fear that Trump is determined to bring us to the brink of war, or beyond … a war with no winners, only losers. Sigh.



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