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Public Theology: The Supreme Court Just Favored One Type of Religion Over Another
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The Supreme Court Just Favored One Type of Religion Over Another
In the case of Trinity Lutheran Church, a Missouri Synod congregation, the court reverses a state decision. It favors the false views of the religious right about religious freedom.

By Ed Knudson

Editor's Note: This was originally published June 26, 2017. For important updated comments go to the bottom of the article. This case has generated lots of discussion on the issue of church and state.

Some church denominations believe in and carry out the practice of setting up their own religious schools rather than encourage their members to send their children to public schools. One of these is the Roman Catholic Church. Another is the Lutheran Church - Missouri Synod, one of the two main Lutheran bodies in the United States.

Other church denominations believe generally that they should support and encourage high quality public schools to which they are able to send their children. Religious instruction is done by the church itself rather than in a separate school conrtrolled by the church. Most Protestant denominations, other than in the South, favor this option including the Evangelical Lutheran Church in America (ELCA),the other major Lutheran body. I am a pastor of the ELCA.

In the South private religious schools were set up by Southern Baptists and other white denominations after the 1954 Supreme Court decision outlawing racial discrimation in schools. This fact is particularly important to realize. Any government activity that supports and encourages private religious schools means that Southern racist practices are being affirmed. Since the Republican Party has now become the party of Southern states it should not be overlooked that it proposes and supports those programs and policies which favor white religious schools which were established precisely to avoid integration.

One would think in a country that says it practices separation of church and state that agencies of the government would not support one or the other of these types of church denominations, or favor schools set up for the purpose of avoiding following what the Supreme Court decided in 1954. But that is exactly what the Supreme Court has just done. In fact it has in its recent decision favored one type of Lutheran church over another type of Lutheran church. It favors a Missouri Synod Lutheran Church over against the ELCA.

This means that the government is going to be giving money to one type of Lutheran church for its program and facilities, encourging and facilitating that type of particular church philosophy and program. And it is doing so on the basis of so-called "freedom" of religion even though the first amendment to the constitution clearly says there will be no establishment of religion in this country.

This way of understanding "freedom" of religion is not just something applied in this particular case, it is part of a general movement of the religious right in this country which has set up its own law firms to carry such cases through the courts, cases which claim that so-called "Christians" or "Christian businesses" should be free to discriminate, for example, against gay and lesbian persons or women who are in need of abortion or contraception. The case just decided adds another dimension to what I consider to be a ridiculous view of religious freedom.

The case, Trinity Lutheran Church vs. Comer, had to do with the following as described in the Washington Post:
Missouri “offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.” Trinity Lutheran Church applied “for its preschool and daycare center,” and was ranked fifth out of 44 applicants, under the state’s largely objective application ranking program; but though the state awarded 14 grants, it excluded Trinity precisely because it was a church. The state’s view was that the state constitution’s establishment clause, which reads “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship,” mandated such exclusion.
Notice here the very specific language in the state constitution which says "That no money shall ever be taken from the public treasury, directly or indirectly" to aid any church. This Supreme Court, despite all the Republican talk about states rights, overturned the state decision on this matter and imposed the new right wing view of "religious freedom" on the state of Missouri. In other words, the word "freedom" is being used in a way that is exactly opposite of what the word means. The power of the state is being used by a Republican Party (which influences the selection of Supreme Court justices) to favor and actually "establish" one type of religion over another. This is the opposite of the free exercise of religion guaranteed in the first amendment.

The fact that five of the nine Supreme Court justices are themselves of the Roman Catholic faith is no small thing here (Anthony McLeod Kennedy, Clarence Thomas, John Glover Roberts, Jr., Samuel Anthony Alito, Sonia Sotomayor). The Republican Party has adopted the extreme view opposing all abortion promoted by Catholic bishops and has gained the support of many Catholics due to this view. And it is not well understood how important it is politically that the Catholic bishops have for some time become rather desperate about the question of how to fund Catholic schools. They want school vouchers which would allow Catholic parents to get money from the state to pay for education at Catholic schools. The whole movement of conservative politics the last couple decades has been to promote "school choice". Part of the reason for this is that teachers in public schools and their unions are a major source of funding and support for the Democratic Party. So the Catholic bishops and parents have a good reason to support Republican ideas about school choice over against public schools.

Supreme Court justices are human beings, they think based on their experience and the political conditions of the times. Four of the five Catholic justices supported this decision concerning Trinity Lutheran Church which has both a Learning Center for young children and its own school for older children. These justices supported religious parochial schools and did so based on the idea, believe it or not, of "religious freedom" which, if you know anything about Reformation history, is a distinctly Protestant, not Roman Catholic, idea. In today's politics, things are being turned into their opposites.

Justice Sotomayor, though a Catholic, voted against the majority view on the court along with Ruth Bader Ginsburg. In her dissent Justice Sotomayor writes:
The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface — like a Sunday school room’s walls or the sanctuary’s pews — are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.
Exactly. The conservative religious right and the Roman Catholic bishops want the power of the state to advance their religious causes and institutions. The fact that they are willing to use the incredibly important value of "religious freedom" to mean its opposite is to me despicable.

As I indicated above, this effort to redefine religious freedom to mean that religious groups can use the power of the state to discriminate against others, such as black children in Southern states, or gay and lesbian persons, and to promote and actually have the state provide funds for their particular religious institutions, is not just a vaguely defined political movement, it is the actual substance of political views within the current Republican Party and its way of articulating its beliefs. And it is promoted in particular legal organizations.

Trinity Lutheran Church-Missouri Synod intentionally used the right wing organization called the Alliance Defending Freedom. Here is how they announced the decision on their website: "Today, the Supreme Court of the United States ruled 7-2 that it is unconstitutional for the state to treat churches and other religious organizations worse than everyone else simply because they are religious."

You may want to read that last sentance again. And again. It sets up the mental framework of the religious right, that those who are "religious" are being discriminated against. Here the language is the same as that used within the civil rights movement concerning black people, who were, actually, victims of discrimination. It is the language of the womens' movement who have, indeed, been discriminated against. And the language of the gay rights movement who have experienced extreme discrimination for centuries. These religious right folks want to see themselves as blacks, women, and gays, as victims of discrimination. It has to do with the doctrine of "equal treatment" which is exactly the doctrine that otherwise conservative Republicans have rejected ideologically.

But what they really want is the power of the state to be able to discriminate against people they don't like and to have the government fund their schools and institutions. And, of course, these folks hate public schools. They want their own schools, and they want government to pay for them. How can it be that the same conservatives who holler and scream about people who take government money, who otherwise condemn government, want government to favor themselves over against others in the community? It is very strange thinking. But it is dominating politics these days, even the Supreme Court.


Updated Comments: This case has generated a great deal of debate about church and state. Bruce Ledewitz, a professor of law at Duquesne University School of Law, wrote a piece call "'Trinity' case marks end of originalism" at the Philadelpha Inquirer. He says that the Trinity decision demonstrates how silly are the arguments of the legal theory called "originalism".
...from the point of view of originalism, the decision was ridiculous. If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches. And, even if a decision by Missouri to pay the church might somehow be thought not to violate the Establishment Clause, it could not possibly be argued that the original Free Exercise Clause required a payment from Missouri. You could have asked any member of the founding generation whether the Free Exercise Clause ever required the payment of public money to a church and the answer would have been a unanimous no.
I agree with this. In my article above I argue that so-called "conservatives" today are using the language of "religious freedom" to try to accomplish the exact opposite of what the phrase means. Ledewitz says that the decision itself is sensible since it helps pre-school age children in a learning center, not a church. But as I argue above, that learning center is a part of a church complex that includes its own parochial school. The church uses the learning center to lure parents to the school and church.

I ran into the Ledewitz article because of an attack on Ledewitz in the Washington Post by Randy Barnett, the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center. He asks "Does Trinity Lutheran mark the 'end of originalism'?" Barnett then goes into a lengthy justification of originalism as a legitimate legal theory even though no current Supreme Court justices claim to be originalists and even though it has only recently developed as the political philosophy of libertarianism has been popularized by right wing radio, a hyper form of absolutized liberalism which tries to pretend it is "conservative". If you read the Barnett article you will be confronted with convoluted arguments that hardly make any sense. He brings up the 14th amendment, how originalists themselves have debates over its meaning, and how, apparently, it challenges whether or not what we know as the Bill of Rights really is fully a part of the constitution. So, originalists, or some of them, don't believe in the "rights" in the constitution? They don't believe in rights in the first place? Barnett calls them a "modern invention" in the 1940s. Wow. So originalists reject the basic idea of rights? You won't hear that on the campaign trail of today's conservatives yet they want to put originalists on the Supreme Court.

Barnett then actually turns completely around and argues that the state of Missouri engaged in discrimination in adopting its "Blaine Amendment" prohibiting public money to be given to religious institutions.
Indeed, the state constitutional provision in the case–a so-called Blaine Amendment–was rooted in anti-Catholic bigotry. When protestants controlled the public schools, they did not want to see Catholics setting up their own school system. So Catholics would be made to pay twice: once for the protestant “public” school they would not utilize and again for a Catholic school they would.
All of a sudden it is all right to bring up later discrimination in a state as a legitimate factor to consider in understanding the constitution. Think of the history here. When the constitution was adopted this country had few Catholics. Then later there have been waves of immigration from several Catholic countries changing the social and religious nature of the country. And Barnett, the originalist, thinks it is perfectly understandable to take into account discrimination against Catholics as a factor in judging a case today. In other words, he is doing what all justices have to do, decide cases not just on the basis of the text at the time the constitution was adopted but also on the basis of what has happened in the meantime, and how to apply that text to the changed circumstances of the times. That is the obvious, logical, necessary thing to do and Barnett does it himself. But he thereby violates his own legal theory!

Ledewitz too points this out in his comments following the Barnett article.

This case has to do with religion, and the ridiculous changed definition of religious freedom claimed by so-called conservatives, libertarians, and originalists. Religious conservatives want to claim they are the ones being discriminated against, just as blacks, women, and gays have been discriminated against, as I discuss in the above article. But this turns everything around. Words come to mean the opposite. Religious conservatives want "freedom" to continue to discriminate. Catholic bishops and white Southern Baptists want "freedom" to have government pay for their schools using tax money of everyone. Barnett says he as a Jew was forced to play a role in a Christmas program in a "Protestant" public school. Well, that may have been true years ago, but no longer. Republican politicians have been getting elected by saying one thing (religious freedom) and doing another (using government to support their religion). No wonder so many people hate government these days.

But it is not just religion where this is occurring. Ledewitz in his article nails it when he accuses originalists of actually promoting a particular theory of the relation of government to economics. Here is where conservative religion and "conservative" economics come together to form a political philosophy which is the opposite of what it claims to be. Ledewitz says:
The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory.

The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. This is clear in the pronouncements of leading originalists like Randy Barnett of Georgetown Law School, the mastermind of the Obamacare judicial challenge, and a supporter of what is called the pre-New Deal court. Since powerful economic interests in this country could never convince the American people to surrender the power of the federal government to deal with national problems, originalism must be relied on to do this in the courts, under the misleading rubric that judges enforcing history are doing so in a value neutral way.
With this you can see why Randy Barnett wrote his piece in the Washington Post and called Ledewitz "snarky" and tries to view originalism as a wholly scholarly legitimate legal theory rather than what it really is, a rather ridiculous effort by a relative few to deny the importance of the last century of development of legal theory, an effort to deny the tradition of human rights, to return to a pre-New Deal understanding of the relation of the federal government to economic structures. I wonder why the Washington Post gives space to such ridiculous writing.

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Date Added: 6/26/2017 Date Revised: 7/12/2017 5:10:16 PM

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