“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.

In 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.

What 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.