Keep the Church-State Wall Strong


When the U.S. Supreme Court ruled last summer in favor of a mid-Missouri church that sought public funds to pay for a safer playground, it was clear that the often blurry line between church and state was going to be debated and defined yet again. 

A recent ruling in New Jersey, plus a new faith-based initiative from the White House, have kicked off a new  round of discussions.

In the case of Trinity Lutheran in Columbia, seven justices sided with the church’s efforts to take part in a publicly funded program that provided shredded tires to cushion the surface of a preschool playground. But even the justices in the majority filed a number of opinions, showing how difficult it is to come up with a consensus on such a thorny issue. (Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.)

One key to the fragmented majority came in a footnote to the majority opinion, two sentences clearly designed to limit the scope of the effect of the case:

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“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.”

Some of the justices who were in the majority would not sign off on that footnote. In the wake of that reluctance, efforts have begun to broaden the case’s conclusion to situations that stray far from the surface of a playground.

In New Jersey, the state Supreme Court ruled unanimously that public money should not have been used to pay for fixing the roof of a church in Morristown. The opinion cited a clause in the New Jersey Constitution that expressly forbids such expenditures.

Lawyers  representing the 12 churches that brought the lawsuit say they may appeal to federal court, citing the Trinity Lutheran decision from last year. One lawyer, John M. Bowens, told The New York Times:

“The Supreme Court in New Jersey interpreted an arcane provision of the New Jersey Constitution to essentially trump what was held in Trinity Lutheran. I just couldn’t understand how they got to that decision.”

The state court’s ruling does not require houses of worship to return any public money that has already been used for projects; it covers only spending in the future. But it is likely to spur other efforts to further chip away at the wall separating church and state.

That erosion could be accelerated even further by a new initiative from President Donald Trump’s administration. Trump revived the White House Office of Faith-Based and Community Initiatives, but he removed a key provision that had shielded those seeking government aid from having to listen to proselytizing as a condition of getting the financial help.

Some Orthodox Jewish groups welcomed the new effort. Other Jewish groups expressed concern that the government assistance would be coupled with attempts to convert recipients of the grants. In earlier versions, alternatives to such sermons were available. Marc Stern, the counsel for the American Jewish Committee, said such options are a key to keeping church and state separate.

“It’s always been thought that the provision of an alternative is an essential element of preserving religious liberty,” Stern said in an interview with the Jewish Telegraphic Agency (JTA). “Dropping it is more than a step backward. Forced sermons remind us of efforts at various times to make us listen to conversionary sermons.”

And the Anti-Defamation League said that the new order “puts America’s most vulnerable citizens at risk of choosing between accessing essential, taxpayer-funded social services and being subject to unwanted proselytizing or religious activity.”

The First Amendment’s guarantee of freedom of religion has two vital parts that each need to be enforced. The free exercise clause is designed to ensure that all Americans can worship — or decline to worship — as they wish. But the equally important establishment clause requires that “Congress shall make no law respecting an establishment of religion.”

The slippery slope that the Supreme Court created with the Trinity Lutheran Church ruling will no doubt spawn more cases in the coming years. And keeping both protections of the First Amendment strong will require nuanced, thoughtful opinions. But only by doing so can courts keep alive the system that has served the United States, its citizens and its religious institutions well since its founding.