Column on Trinity church case

Since 1962 and the stop to mandated prayer in public schools, we have lived in a maelstrom of controversy on church and state relations.

The Trinity church case from Missouri seems to be trivial. A church wants a grant to improve its playground. Out of small matters, constitutional consequence emerges.  Is this to be considered an establishment, state-sponsored support of religion. After all, should tax dollars be used to support a variety of religious mission work? Should those activities be funded solely by voluntary contributions?

As soon as the government aids one faith activity, what about aiding  other activities and groups? Can you imagine the outcry from the right if the state supported a playground for an Muslim school? What if Tom Cruise lobbied Congress for aid to the Scientologists? The threat of invidious discrimination becomes very real.

On what grounds did the Supreme Court permit this direct aid to a religious site?  The court read the case as inhibiting the free exercise of religion clause, not the establishment clause. The court sees it as discriminatory against a religious organization, when the standard should be a neutral application of a general benefit for non-profit groups. Further, it applied the strictest standard in holding that the state of Missouri burdens the free exercise of religion. It applied  the standard of individual rights to a religious institution as a whole.

Since 1946 the Court has permitted aid for parochial activities if the same benefit is part of public life, such as riding a school bus, in the “child benefit” approach. Later this could be subsumed under a notion that the purpose and effect of a program was secular, not religious (for instance, see the three pronged test of  Lemon v. Kurtzman, 1971).

The two religion clauses are set out to work in tandem, but this is a good example of possible conflict between the two clauses. As Laurence Tribe said, voluntarism and separation work together well for the most part. As a Christian I know that Jesus said, “follow me,” without a hint of coercion or aid from the hand of the government. Our history is replete with examples of a thousand blossoms blooming as different groups of people formed religious societies to fit their belief and felt needs over time. We have been a seedbed of religious experimentation and diversity. One of FDR’s four freedoms was freedom of religion, “freedom of every person to worship God in his own way—everywhere in the world.”

Column on Trinity church Case

James Madison was a lifelong supporter of voluntarism and church and state separation. In a letter he wrote: “The settled opinion here is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both; that there are causes in the human breast which ensure the perpetuity of religion without the aid of the law; that rival sects, with equal rights, exercise mutual censorships in favor of good morals; that if new sects arise with absurd opinions or over-heated imaginations, the proper remedies lie in time, forbearance, and example; that a legal establishment of religion without a toleration could not be thought of, and with a toleration, is no security for and animosity; and, finally, that these opinions are supported by experience, which has shewn that every relaxation of the alliance between law and religion...no doubt exists that there is much more of religion among us now than there ever was before the change ( of no state support for religion) , and particularly in the sect which enjoyed the legal patronage. This proves rather more than that the law is not necessary to the support of religion.”