Supreme Court Rules In Favor Of Free Exercise: Excluding Churches From Public Benefits ‘Odious To Our Constitution’

By: Ben Shapiro

On Monday morning, the Supreme Court released a ruling by a 7-2 margin finding that states cannot prohibit public funding to churches simply because they are churches. The case itself surrounds a playground at the Trinity Lutheran Church Child Learning Center; the Center sought public funding for a rubber surface. The Department of Natural Resources denied the petition, citing a blanket rule that it would not fund churches. The Court rightly found that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.”

The opinion was delivered by Chief Justice Roberts, with concurrences by Justices Thomas and Gorsuch. Only the far-left justices, Sotomayor and Ginsburg, dissented. Chief Justice Roberts’ main point: “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

There is a significant limitation on the case’s scope: footnote 3, which oddly suggests, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” This footnote was not joined by four of the justices, including Chief Justice Roberts. It’s clearly meant to limit the scope of the case as closely as possible – to allow the court to sneak out of the opinion if it doesn’t like the activities in which churches participate under “free exercise.” If, for example, the church had decided to use the money for general education, the Court might still attempt to kill the funding on the basis that the church wasn’t building a playground.

Justice Gorsuch’s concurrence hits on precisely this point. Gorsuch writes, “the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use…Respectfully, I harbor doubts about the stability of such a line….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?” Gorsuch’s main concern here is that the Court is setting precedent for rejecting particular free exercise when it doesn’t like the exercise.

Gorsuch states that the Constitution “guarantees the free exercise of religion, not just the right to inward belief…Generally, the government may not force people to choose between participation in a public program and their right to free exercise of religion. I don’t see what it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.”

This matters because Gorsuch is looking forward in time to another case the Court is about to decide: whether businesses can operate in religious manner congruent with free exercise if in doing so, they don’t serve gay couples cakes, for example. Gorsuch’s point is that the Court can now argue that a state is not discriminating against a religious person, but only against doing religious things. Take, for example, marriage ceremonies. Let’s say a church only performs heterosexual wedding ceremonies – and the state says that no institution may receive non-profit status if it does not perform same-sex weddings. Is that discrimination under the free exercise clause? Of course it is. But the Court is now leaving the door open to stating that marriage is a secular exercise over which the government can now assert control, and that it is not violating the religious character of churches in doing so. As Gorsuch says, that should make no difference. Discrimination against religion is discrimination against religion.

Or take the example of school vouchers. This decision, without footnote 3, could easily be used to allow school vouchers. But now the Court shies away from that.

Justice Sotomayor knows this too, and so she argues in dissent that the government has every right to steamroll religious institutions. “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,” Sotomayor writes. “The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

The case itself is so narrowly tailored that it holds nearly no importance for the future of the Court – or the free exercise clause. Of course, that’s always been true: the Court has never respected precedent when it feels impelled to buck it.

http://www.dailywire.com/news/17943/supreme-court-rules-favor-free-exercise-excluding-ben-shapiro