Robert F. Jakubowicz: Small case with big implications

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PITTSFIELD — The U.S. Supreme Court will today hear the Trinity Lutheran Church v. Pauley case that has the potential for triggering a major court ruling about the separation of church and state out of a seemingly minor case. It involves a church using a Missouri state grant to replace its pea gravel playground surface with a bouncy, recycled scrap tire surface at its pre-school and day care center.

The church applied for funds from the state's scrap tire grant program for rubber safety flooring to resurface all playgrounds . The application was denied because of a state constitutional provision that: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion." This denial upset religious groups as an example of government hostility toward religious faith.

Writing in a Federalist Society blog, Kyle Duncan raised concern that the Court's upholding of the denial of grant funds to the Trinity Lutheran Church would broaden the implicit allowance by the Court of religious discrimination by states under its prior 2004 Court decision of Locke v. Davey. In that case, a student applied for funds to be used for his college expenses from a Washington state program that offered financial assistance to academically. gifted students. The student was initially informed that he was eligible, but later, when he chose a double major, including pastoral ministries, he was denied this assistance because of a state Constitution provision that no public money was to be used or applied to "any religious worship, exercise or instruction, or in support of any religious establishment."

Chief Justice William Rehnquist wrote the majority opinion in the 7-to-2 Locke decision. He acknowledged that the state program was secular and neutral and that these public funds could be used for all students in any college or university. In this case, the student was going to a private, church affiliated college that offered the usual college courses as well as religious courses and gave degrees in pastoral ministries, Rehnquist ruled that when the student chose pastoral ministries as one of his dual majors, this affected the state's substantial interest in preventing the use of public funds to educate ministers.

The chief justice based this state interest essentially on the Founding Fathers' hostility toward funding ministries and churches. James Madison, a key framer of the Constitution, felt strongly about this anti-aid to religion principle. He wrote that compelling taxpayers to support the clergy and churches "would trample" the rights of conscience by "coercing religious devotion."

Strong precedent

Justice Antonin Scalia wrote a strong dissent in the Locke case in which Justice Clarence Thomas joined. Scalia declared that the majority opinion justified singling out of religion for exclusion from public programs in virtually any circumstance. He doubted the Framers of the Constitution would have barred ministers from using public roads on their way to church. But, he warned that the logic of the majority in that case was easily extendable by future Courts.

He wrote:" When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less equipped to find it offensive. in the future." He noted that the Court has not approached other discrimination cases this way. It remains to be seen whether his successor, Neil Gorsuch, will take the same constitutional tack in the Trinity Lutheran Church case.

There are 39 states, including Massachusetts, with similar provisions in their Constitutions. They are referred to as Blaine Amendments named after James G. Blaine, a U.S. senator from Maine. The use of federal funds for religious schools was controversial in the mid-19th century. Blaine's proposal to amend the U.S Constitution in 1876. in a way to block all such public funding was defeated by the Senate. But, the states remained concerned enough about such funding that they amended their Constitutions with similar anti-aid provisions.

These amendments are viewed by some as transparent anti-Catholic parochial school measures. The American Civil Liberties Union has filed a brief in the Trinity Lutheran Church case detailing how such discrimination has since been dispelled in Missouri and elsewhere. These anti-aid provisions in Missouri and elsewhere are written in broad terms. The Massachusetts' version, for example, states that "no grant, appropriation or use of public money shall be made or authorized for the purpose of founding, maintaining or aiding any church,. religious denomination or society" As a result these provisions have been applied to matters from playground surfaces in the Missouri case to a pending case before the highest Court in Massachusetts involving the town of Acton giving a grant of public funds to refurbish stain glass windows and for other repairs to a Congressional Church.     

Until now, the framers intent in their First Amendment's establishment clause prohibiting government support for religion to safeguard taxpayers from being compelled to do so, has been the rule with limited exceptions. Will the Court drastically change this with the Trinity Lutheran Church case by finding that these prohibitions are discriminatory and violate the church's right under that Amendment's free exercise clause to practice its religion?

Robert "Frank".Jakubowicz is a regular Eagle contributor.

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