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.


Meanwhile, Back At The Ranch …

Since long before the inauguration on 20 January, we have been focused on a series of news stories that keep us all reading, watching, listening, and for some of us, writing until long after the candles have burned low.  For the last two weeks or so, the big stories have surrounded Mike Flynn, who was forced to resign just 24 days after being sworn in as National Security Advisor, Jeff Sessions, who lied under oath about possible Russian connections and meetings, and Jared Kushner.  We have focused on the confirmation process for a number of Trump’s cabinet selections, including Sessions, DeVos, Pruitt and others.  We have followed closely Trump’s disastrous ban on travelers from seven Middle Eastern, primarily Muslim nations and its aftermath.  But with our attention pulled in so many different directions, trying to stay abreast of the important things and the trivial as well, like Trump’s Trivial Tweets, we have not been particularly enlightened about the legislation being somewhat more quietly proposed in Congress.

Perhaps in part we have failed to focus on Congressional activity because for the past four years, there has been relatively little and we have, for the most part, come to expect little, if any, work from our well-paid elected officials.  But that is changing, as they seem motivated to push forth as much damage as possible before many are ousted in 20 months.

The following are just nine bills that have been proposed in the House of Representatives in the past two months.  Each contains a link, who proposed the bill, and a brief summary where available.

HR 861 Terminate the Environmental Protection Agency

Proposed by Florida freshman representative Matt Gaetz, below is the full text of the bill (no summary needed):

“The Environmental Protection Agency shall terminate on December 31, 2018.”

The likelihood of this bill ever being passed into law is slim, but I find the very notion of it to be chilling nonetheless.

HR 610 Vouchers for Public Education

Proposed in January by Representative Steve King of Iowa

This bill proposes a federal school voucher program; limits the authority of Deptartment of Education, repeals the Elementary and Secondary Education Act of 1965, and repeals the No Hungry Kids Act that set nutritional guidelines for schools.

Numerous reliable studies have found that there is little, if any benefit in using public monies to provide private school educations to a few, and it deprives the majority of children from a quality public school education: Fordham Foundation,  Brookings Institute

Interestingly, Steve King actually re-introduced the No Hungry Kids Act in 2015 and is now calling for its repeal!

HR 899 Terminate the Department of Education

Proposed by Representative Thomas Massie of Kentucky

Full text of bill: “The Department of Education shall terminate on December 31, 2018.”

“Neither Congress nor the President, through his appointees, has the constitutional authority to dictate how and what our children must learn,” Massie said in a press release announcing the bill.

This, like the termination of the EPA, has few teeth and next to no chance of becoming law, but again … the implication is chilling.

HJR 69 Repeal Rule Protecting Wildlife

Proposed by Representative Don Young of Alaska, already passed in House of Representatives

This bill would repeal protections for ‘non-subsistence’ killing of wildlife in Alaska, in other words allow for unlimited hunting and killing of animals for sport.

HR 370 Repeal Affordable Care Act

Proposed by Representative Bill Flores of Texas

The bill would simply ‘undo’ ACA with no replacement yet proposed, leaving more than 20 million people without health insurance.

HR 354 Defund Planned Parenthood

Introduced by Representative Diane Black of Tennessee

The bill would prohibit for any use, funds for Planned Parenthood unless they certify that the affiliates and clinics will not perform, and will not provide any funds to any other entity that performs, an abortion.  Exceptions are made in cases of rape, incest or where the woman’s life is in danger.

This is worthy of an entire post, but in short, Planned Parenthood provides so many services that safeguard women’s health and have nothing to do with abortion, that the concept of punitive withholding of funds is nothing short of shameful!  In fact, many of the services it provides actually help reduce the number of abortions.

HR 785 National Right to Work

Proposed by Representative Steve King of Iowa (busy little daemon, isn’t he?)

“Right to work” is a shorthand for laws throughout the country that prohibit labour unions from requiring workers to pay dues as a condition of employment. Proponents say the law is necessary to end “forced unionism.”

Without unions financially able to go to bat for them, the working class will almost inevitably see lower wages and fewer benefits. Long term, the bill would effectively end labour unions altogether.

HR 83 Mobilizing Against Sanctuary Cities Bill

Proposed by Rep. Lou Barletta of Pennsylvania

This bill prohibits a state or local government from receiving federal financial assistance for a minimum of one year if it restricts or prohibits a government entity or official from: (1) sending to or receiving from the responsible federal immigration agency information regarding an individual’s citizenship or immigration status, or (2) maintaining or exchanging information about an individual’s status.

Another move to make wide scale deportation of immigrants easier for federal agencies.

HR 147 Prenatal Nondiscrimination Act

Proposed by Representative Trent Franks of Arizona

This bill imposes criminal penalties on anyone who knowingly or knowingly attempts to: (1) perform an abortion knowing that the abortion is sought based on the sex, gender, colour or race of the child, or the race of a parent; (2) use force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion; (3) solicit or accept funds for the performance of such an abortion; or (4) transport a woman into the United States or across a state line for the purpose of obtaining such an abortion. Violations or attempted violations shall result in fines and/or imprisonment for up to five years.”

While the wording may seem harmless enough … only abortions for the purpose of gender/race selection would be subject … the potential for abuse and discrimination is 100% guaranteed.  This bill would be an abomination to a woman’s right to make choices about her own body and would penalize minorities and low-income women.

I cannot write in-depth about any one of these bills in this post — almost every one could constitute an entire post by itself.  My intent here is only to make the reader aware of some of the bills being proposed and considered by our not-so-illustrious House of Representatives while our focus has been elsewhere.

While it is good to see Congress actually working, I would prefer they put their efforts toward building good legislation, rather than tearing down some of the better laws we already have, such as those protecting our environment, educating our children, and protecting workers, women’s rights, healthcare, immigrants, etc.  It should be noted that the 113th and 114th passed 296 and 329 laws, respectively. It is estimated that only 5%-10% of all bills ever get signed into law.  We can only hope that the nine I listed above fall into oblivion, as they are neither worthy of, nor in the best interest of We The People. In order to help this happen, we must all do our part, contacting our Congressmen and letting them know our feelings, whether by email, letter, phone call or personal visit!

Another Trump Mis-Match!

Well, folks … he’s done it again.  Donald Trump has gone out there and found the most impossibly imperfect person to fill a cabinet position.  That person is Betsy DeVos who Trump has named to fill the position of Secretary of Education.

school2What is it, exactly, that makes DeVos such a poor choice to fill this position?  First, her education is in business administration and political science, while her career has been primarily in philanthropy and politics.  She served for many years as chairman of the Michigan republican party, but has never been either a teacher or a school administrator.  So, like the one who chose her, she has no actual experience for the job she will be stepping into.  But that is not the worst of it.

The worst of it is that she is what is known as a ‘school choice advocate’, a strong proponent of charter schools and school vouchers, neither of which do anything to help improve the public schools which the majority of children attend, and both of which actually take funding away from traditional public schools.

We have all heard of charter schools, but many may have only a fuzzy concept of what a charter school actually is and how it operates.  According to the National Center for Education Statistics (NCES):

“A public charter school is a publicly funded school that is typically governed by a group or organization under a legislative contract (or charter) with the state or jurisdiction. The charter exempts the school from certain state or local rules and regulations. In return for flexibility and autonomy, the charter school must meet the accountability standards outlined in its charter. A school’s charter is reviewed periodically (typically every 3 to 5 years) by the group or jurisdiction that granted it and can be revoked if guidelines on curriculum and management are not followed or if the accountability standards are not met.”

Legally, charter schools charge no tuition, intend to provide a higher quality of education than public schools, and cannot discriminate on the basis of race, sex or disability.  The charters provide rules and guidelines and the schools are periodically reviewed to ensure they are following the rules of the charter.  The problem?  Most charter schools are funded by taxpayer dollars that would have otherwise gone into the public school system, where some 90% of all students are getting their education.  The result?  Some public schools are not receiving adequate funding to maintain school buildings, provide quality teachers, and other amenities such as books and meals.

There is much more, both positive and negative, to be said for charter schools, but I cannot possibly cover all the pros and cons here, so let us return to Ms. DeVos and her track record.

DeVos.jpgAs an advocate for school choice, DeVos has pushed for charter schools in her home state of Michigan, particularly in Detroit.  DeVos sits on the board of the Great Lakes Education Project, which advocates for its education reform priorities in the Michigan state legislature. This group is responsible for pushing the legislature to end its plans for a Detroit commission to regulate charter schools. DeVos has been at the forefront of efforts to push against accountability by charter schools. Detroit’s charter school system is considered by many to be the biggest school reform disaster in the country. For more information on this, click here. 

DeVos is also a strong advocate for school vouchers that provide government funding for tuition at private and religious schools.  Like the charter school system, these serve very few, and take funding away from public schools that serve the vast majority.

There can be no doubt, especially in light of recent events in the U.S., that our educational system is broken and in need of repair.  In a 2015 PEW Research study, U.S. students ranked 35th in Mathematics and 27th in Science.  Our schools, so focused on technology, no longer teach basic History and Civics courses.  And our literacy ranking, according to one study, is 7th among industrialized nations. However, the path to improved education for ALL is not to set aside a few schools for the benefit of less than 10% of all school children in the U.S., while taking away from the greater good, the other 90%.  Charter schools may be an equalizer for a few, but in the long run, they impede the progress of the many.  I do not pretend to have the answers, to know what steps need to be taken to improve public education in the U.S.  But one thing I do know is that a charter school system that benefits a small portion of students with minimal accountability, is most definitely not the path to fixing the educational system in the U.S.

Additionally, neither Trump nor DeVos have addressed the issue of college tuition and student loans, which is a major concern in the U.S. today, and must be a part of any attempt to improve our educational system.

Betsy DeVos, like most of Trump’s close advisors, was born with a silver spoon in her mouth and married billionaire Dick DeVos, an heir to the Amway fortune. I have nothing against the wealthy, however I think that people who have known some form of struggle, of hardship, are better able to understand the needs of the majority than those who have always resided in the upper echelons.  And I definitely think that for the position of Secretary of Education, a person with a background in the field of education would be better prepared to address the needs of our crumbling educational system.