The United States Supreme Court has a full complement of Justices once again. President Trump’s new appointee, Neil Gorsuch, will face his first high-profile test Wednesday when the court hears a religious freedom case that also has implications for the limit of states’ rights. The final ruling of the court may be overshadowed, however, by analysis of Gorsuch’s opinion.
The case itself involves public funding of religious organizations. Trinity Lutheran Church in Columbus, Missouri, was excluded from a grant program that would have enabled it to resurface its gravel pre-school playground with rubber matting. According to a Reuters report, this exclusion was based upon a clause in the state’s constitution, which does not allow public funding of “any church, sect or denomination of religion.”
In a legal filing, the state of Missouri argues that its refusal to grant money to the church does not infringe upon religious freedom. “Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray and practice any other aspect of its faith however it wishes. The state merely declines to offer financial support,” its statement reads.
Religious conservatives following the case may be inclined to assume that Gorsuch will side with the church, in this case. That is not necessarily an accurate assumption; the three branches of the federal government operate, in theory, according to the U.S. Constitution. This case, then, becomes a question of whether Missouri’s prohibition of public funding of religious entities violates the First Amendment. Technically, it does not, since Missouri’s argument is accurate; declining to provide financial support to the church in no way limits its freedom to operate.
The First Amendment establishment clause prevents Congress from passing laws that either promote or suppress, religion practice. Its specificity is unique, in that it directly restricts the authority of one particular institution; the United States Congress. Whether any state government chooses to provide funding to religious entities or prohibit the public funding of such entities, has little to do with the First Amendment.
Were the Supreme Court to rule for the state of Missouri, it would be a simple affirmation of states’ rights. A ruling against the state would usher in numerous challenges, across the nation; states would practically be forced to provide taxpayer money to churches. The American Civil Liberties Union (ACLU) has filed legal papers opposing Trinity Lutheran’s case. The ACLU’s Daniel Mach says, “Forcing states to provide cash to build church property could open the floodgates to programs that coerce taxpayers to underwrite religion.” A ruling for the church – essentially preventing Missouri and, by extension, all other states, from refusing to provide public funding to religious entities – would be akin to circumventing the First Amendment. The federal government would have assumed an authority that clearly rests with the states.
As for Associate Justice Neil Gorsuch, his record on the issue of religious freedom means very little. During his tenure with the Tenth Circuit Court of Appeals, Gorsuch tackled the lawsuit brought against then-Health and Human Services Secretary, Kathleen Sebelius, by the family that owns Hobby Lobby, an arts-and-crafts chain of stores. The devoutly religious family argued that provisions of the Affordable Care Act ran contrary to their beliefs since it required them to provide employee insurance that covered the provision of contraceptives. This requirement ran contrary to the Religious Freedom Restoration Act, which holds that “government shall not substantially burden a person’s exercise of religion.” Gorsuch sided with the family, and the Court of Appeals ruled 5-4 in their favor. The United States Supreme Court later upheld that ruling.
Gorsuch’s decision in the Hobby Lobby case, however, bears little relevance to the Trinity Lutheran case; The Green family – owners of Hobby Lobby – were clearly being prevented, by the federal government, from exercising their religious beliefs. In the case of the Missouri church, no infringement of religious belief or practice is taking place.
Those who are betting on Gorsuch taking the side of Trinity Lutheran Church may be disappointed. The potential cacophony of disappointment and anger, directed at both Neil Gorsuch and President Trump – should the Associate Justice side with the state of Missouri – would be misplaced.
Those on the political left prefer their judges to allow ideology to influence their rulings. On the right, such an idea is met with scorn, and rightfully so. Gorsuch should not be expected to automatically side with a religious entity in any and every case; he should be expected to decide based upon a sound reading of the Constitution and other federal laws.
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