No doubt, plugged-in readers will come across arguments on the right that today’s Supreme Court ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, Director, Missouri Department of Natural Resources was a great step forward for religious freedom, but I wonder how many commentators will touch on the huge significance of the ruling. In short, the tide has turned on a progressive pretense that is proving increasingly impossible to believe.
In brief, a church group in Missouri applied for a state grant to cover its playground with a rubber surface, and the state invalidated the application on the grounds that Trinity is a religious organization. The majority of the court (all but the two most radical of the nine justices) found that the rejection of the application was discriminatory because it excluded Trinity for the reason that it is religious, not because children playing on a playground is a religious activity.
The majority’s opinion clearly makes it more difficult for the government to, say, discriminate against parochial schools in a school choice program, although it leaves some space for a future court to draw a distinction. With this new precedent, constitutionality would hinge on whether a religious private school is a religious organization that educates children or an organization engaged primarily in religious education. As new Justice Neil Gorsuch writes in his partial concurrence:
Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).
In part for that reason, the most important piece of the entire document (and the longest) is probably the dissent from Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsberg. Sotomayor actually believes that the Constitution should prevent Missouri from funding the church’s playground improvement, let alone requiring it to do so, and for any future court attempting to interpret this ruling’s precedent, she lays it right out:
Today’s opinion suggests the Court has made the leap the Mitchell plurality could not. For if it agrees that the funding here will finance religious activities, then only a rule that considers that fact irrelevant could support a conclusion of constitutionality.
Sotomayor visited the church’s Web site and discovered that it considers its Learning Center to be “a ministry of the Church” that “teaches a Christian world view to children of members of the Church, as well as children of non-member residents.” So, if this counts as a “religious activity,” and if the Supreme Court considers that irrelevant to its ruling, the application to other activities, such as public funding of sectarian schools through a school choice program, is obvious.
Not for no reason are Sotomayor and Ginsberg alarmed by this ruling, because they and Gorsuch seem to agree on the fundamental issue and to come to different conclusions. Sotomayor writes that the playground is “integrated and integral to [the church’s] religious mission,” to which Gorsuch and the vast majority of American Christians would respond, “Well, yes. Everything we do is integrated and integral to our religious mission, and it’s discrimination to block us.”
The trick that Progressives have been able to play for the better of a century is to behave as if their beliefs are religion-free. They have endeavored to force religious Americans to sever their religious selves from their public selves in order to participate fully in public life, and this ruling suggests that the capacity of this scam to persuade has run its course. This appears to be the case in two ways, first in the practical response that one might offer to Sotomayor and second in a stunningly self-unaware statement in her dissent.
The practical argument against Sotomayor’s point of view is that its focus is inappropriately on the people and not the government. The Bill of Rights protects the people’s free exercise of religion while restricting the government’s establishment of religion.
The purpose of Missouri’s playground program, presumably, is to ensure that children are safer when they play on playgrounds. Sotomayer necessarily adds to this mission the judgment that a safer playground is a better playground, benefiting the owner. But having seen ambulance crews enter our church more than once when somebody has had an emergency during Mass, it is clear that being engaged in a religious activity in a religiously focused setting does not change the nature of safety.
By Sotomayor’s reasoning, parishioners would have to enter my Catholic parish knowing that the basic protections of government could not extend there. The EMTs would have to remain outside. Similarly, state governments would be forbidden from giving grants to clean up asbestos, or something, in religiously themed schools.
Again, the key is Sotomayor’s inappropriate focus — not without precedent in prior courts, I’ll grant — on what the people are doing, rather than what the government is doing. This is patently contrary to the First Amendment, which purports to do the opposite.
However, this inappropriate focus has been a lever of the Left for decades. If you want safe playgrounds, in short, you must use non-religious playgrounds. This brings us to Sotomayor’s stunningly self-unaware statement (emphasis added):
[The court’s ruling] permits direct subsidies for religious indoctrination, with all the attendant concerns that led to the Establishment Clause. And it favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded enough to do so successfully.
What is this but the progressive program succinctly put? Sotomayor writes that the church’s playground is a means by which the “faithful reach out to those not yet convinced,” but that applies to almost any organization with a mission statement beyond providing children a safe place to play. District public schools that take it to be their mission to develop any sort of morality or character traits in students would clearly violate this principle, and religious parents who watch in dismay as their children are taught hostility to their views in public schools can well attest to the indoctrination.
In professing to be a non-religious value system, progressivism gains the favored position of being a worldview whose adherents can ensure the full protections of government, while religious organizations are cut off from public resources entirely.
Sotomayor has a point that the majority’s ruling doesn’t dwell on the profundity of its effect, but just so, she does not address the question of where values come from in supposedly “secular” or progressive organizations… or governments.
Her rage, in short, seems to derive from a sense that America is awakening to a scam based on its experience. Namely, there is no such thing as an action outside of a belief system, and if the government is going to grow to the extent that it has, then it cannot profess to derive its beliefs from some non-religious source and thereby disenfranchise religious people and give its own adherents unfair advantages in the marketplaces of ideas and of activity.
In this, Gorsuch seems like the voice of the future not because he is the newest justice, but because his argument simply makes so much sense and is so fundamentally fair.