Trinity Lutheran Church of Columbia versus Comer, director, Missouri Department of Natural Resources

On June 26, 2017, the U.S. Supreme Court ruled that a preschool, which belongs to a church in Missouri, could not be denied public funds for the renovation of its playground.

The question, which was submitted to SCOTUS, seemed rather trivial in all appearances.

The preschool, also called nursery for children whose age ranges between three and five year-old, had a derelict playground. It was a coarse pea gravel surface, which rubbed knees and palms of children when they fell. The concerned superior wanted the gravel surface replaced by a smooth one, not necessarily by an expensive with tiles or seamless synthetic surface, but with recycled tires.

It was certainly a good choice in order to save the planet, which was the most important issue for former President Obama. More, the governor of Missouri was Jay Nixon, a democrat, who had a keen interest in recycling raw materials. Therefore, the altruistic director applied to participate in the state program that gives recycled tires as a soft and safe surface for school playgrounds. The program, run by the Department of Natural resources, offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires.

In a letter rejecting that application, the Department invoked that under Article I, Section 7, of the Missouri constitution, it could not provide the grant to the church on the ground of separation of state and church.

The church sued in Federal district court, alleging that the Department of Natural Resources violated the first amendment of the U.S. constitution, which protects the free exercise of religion. Erik Stanley, the lawyer for the church, told to a local newspaper, “The court seems receptive to our arguments, and we are hopeful that we will see a positive decision. The children at this preschool are no less worthy than the other children of the state benefiting from the safety provided by this program.”

In September 2015, the Federal district court dismissed the suit with a twisted interpretation of the first amendment. “The Free Exercise Clause prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion.”

As this interpretation of the first amendment was viewed by conservative groups as a crass discrimination against Christian children, the suit was no more a menial affair of rubbed knees in a school playground. The school appealed the ruling to SCOTUS, and the case was argued on April 19, 2017, and decided on June 26, 2017.

By a majority of seven to two dissenters, the Supreme Court ruled that the Missouri Department of Natural Resources expressively discriminated the Trinity Lutheran Church against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. The Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.

Unlike any ruling, which is bothersome to read, this one is a scolding. “The state has pursued its preferred policy to the point of expressly denying a qualified religion entity a public benefit solely because of its religious character. Under our precedents, that goes to far.”

Of course, the Missouri Department of Natural Resources has not subjected anyone to chains or torture because of religion but the consequence is, in all likelihood, a few extra scraped knees. “But, the exclusion of Trinity Lutheran Church from a public benefit is odious to our constitution,” said the judges.

In the 53 pages long ruling, half of it is the dissenting opinion of Associates Justices Sonia Sotomayor and Ruth Bader Ginsburg. They took the unusual step of dissenting orally from the bench. Their long tirade ended with that comment on their colleagues. “The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

Ruth Bader Ginsburg is born in 1933 in Brooklyn, New York, to Russian Jewish immigrants. She has been appointed to the Supreme Court by President Clinton in 1993. Her seven colleagues who do not share her view remember an old discrimination against Jews. “Nearly 200 years ago, a legislator urges the Maryland Assembly to adopt a bill that would end the State’s disqualification of Jews from public office. If, on account of my religious faith, I am subjected to disqualifications, from which others are free, I cannot but consider myself a persecuted man.”

Ginsburg would never have been appointed to the Supreme Court a century ago. The first Jewish Justice was Louis Brandeis who was appointed by President Woodrow Wilson in 1916 after a tumultuous hearing process. He was known for radicalism and anti-corporation views. He was a militant crusader for social justice. Sandra Day O’Connor was the first female appointed to the Supreme Court by President Reagan in 1981.

Contrary to the tradition of the Supreme Court, which never comments the outcome of an election, Ginsburg, which was interviewed by the New York Times on July 10, 2016, made that remark. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” It reminded her of something her late husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said. ‘Now it’s time for us to move to New Zealand,’ Justice Ginsburg said, smiling ruefully. (1) Of course, Ginsburg did not emigrate to the forlorn islands of South Pacific. She is a silly sod like Hollywood actors who proclaimed that they would emigrate to Canada if Trump were elected president.

In the opinion page of the New York Times (2), Linda Greenhouse mocked the restraint of Chief Justice John Roberts. In a speech at Georgetown University’s law school, he said that consensus was preferable to division to the court, and a reliable route to achieving consensus in controversial cases was deciding them on the narrowest possible grounds. That is what he did in a footnote saying that the ruling applied only to discrimination for playground resurfacing, and that “we do not address religion uses of funding or other form of discrimination.” Associate Justices Clarence Thomas and the court’s newest justice Neil Gorsuch would have gone further. They deemed a denial of funds to religious schools in general to be unconstitutional unless the state could show a justification of the highest order.

School choice advocates rejoice at the ruling, seeing it as a vehicle for funneling tax money to private religious schools. The freedom of parents to send their children to the school of their choice is a capital issue that is denied by tenants of big government. For conservatives, a school is a place to educate children, for radicals and socialists a school is a place to indoctrinate malleable young brains to their values.

In France, the government restrains the access to private religious schools, which do not work under its own agreement. Liberty, Equality, Fraternity, is the national motto of France, which ornate court’s frontispieces. The reality is less glorious than the motto. Equality has eradicated Liberty and Fraternity.

Reproduction autorisée avec la mention suivante : © Bernard Martoia pour Dreuz.info.

Sources

(1) https://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html
https://www.nytimes.com/2017/04/27/opinion/the-roberts-court-2017-edition.html