Constitution, principle and common sense

The significance of Trinity Lutheran Church of Columbia v. Comer is not the Supreme Court’s 7-2 consensus that the church’s involvement in a tax-funded playground safety program was a matter of “secular intent”; clearly it was. Its significance, as in most such rulings, lies in where the precedent leads from here.

As reported Monday, a majority that united the court’s conservative wing with liberal Justices Elena Kagan and Stephen Breyer and frequent tie-breaker Anthony Kennedy ruled that a Missouri church’s participation in the program does not violate the First Amendment’s establishment clause.

The decision threw into doubt the scope not just of Missouri’s constitutional ban on taxpayer funding for “any church, sect, or denomination of religion,” but of similar laws in about three-fourths of the states.

Chief Justice John Roberts, writing for the majority, concluded that not only was the establishment clause not violated, but exclusion of the church from the program violated the free exercise clause.

“The express discrimination against religious exercise here is not the denial of a grant,” Roberts wrote, “but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant.”

The court, as it has been called on to do so many times and will no doubt do again, was navigating that shaky ground between the unconstitutional entanglement of government and religion and an absolutist insistence that the two never occupy the same area code. (Is it an establishment of religion if a church bus breaks down and a passing school bus on the way back to the shop gives the Baptists’ driver a lift to the nearest mechanic?) The proverbial constitutional “slope” can be slippery on more than one side.

The Washington Post noted in its report on the ruling that Roberts, as he has done in other high-profile cases (the Affordable Care Act comes to mind), limited the scope of this case to narrow specifics rather than letting it be perceived, implicitly or explicitly, an all-encompassing landmark.

“This case involves express discrimination based on religious identity with respect to playground resurfacing,” the chief justice wrote in a footnote to the majority opinion. “We do not address religious uses of funding or other forms of discrimination.”

The question going forward will be how broadly “secular intent” with regard to church-state matters will be interpreted by various courts — and how far some state and local governments, for reasons both purely practical and purely political (and we can expect plenty of both) will try to stretch the limits.

There’s also this: It will be interesting to see whether the same Americans who applaud this ruling as applied to a Lutheran church in Columbia, Missouri, will still approve when its precedent is applied to, say, a mosque in New York — assuming, of course, that it is. If not, then no principle, constitutional or otherwise, will have been affirmed, least of all the free exercise of religion.

This story was originally published June 27, 2017 at 5:03 PM with the headline "Constitution, principle and common sense."