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Toobin writes: "Donald Trump may be imperilled by the ever-growing number of investigations into various avenues of his conduct, but his agenda continues apace at the Supreme Court."

In recent years, conservatives have contrived ways to obtain government money for religious entities, and the Supreme Court has been more sympathetic to the lawyers representing them. (photo: Mark Wilson/Getty)
In recent years, conservatives have contrived ways to obtain government money for religious entities, and the Supreme Court has been more sympathetic to the lawyers representing them. (photo: Mark Wilson/Getty)


The Supreme Court Is Quietly Changing the Status of Religion in American Life

By Jeffrey Toobin, The New Yorker

07 March 19

 

onald Trump may be imperilled by the ever-growing number of investigations into various avenues of his conduct, but his agenda continues apace at the Supreme Court. There, the President’s appointees and their allies are making quiet progress on another key goal of his political base: transforming the place of religion in American life. The changes involve both religion clauses of the First Amendment—the one that prohibits the “establishment” of a state religion and the one that guarantees the “free exercise” of Americans’ faiths. The short version of what’s going on is that the establishment clause is out, and the free-exercise clause is in.

During the past several decades, the Court has defined the establishment clause to limit the ability of churches and other religious institutions to receive subsidies from taxpayer funds. The receipt of government money, after all, defines a state religion. But, in recent years, conservatives have contrived various means to obtain access to government money for religious entities, such as schools, and the lawyers representing them are receiving an ever more sympathetic hearing at the Court.

The key recent precedent came in 2017, when the Justices held that Missouri was obligated to offer financial grants for the resurfacing of a playground at a parochial school, if the state was going to make the same grants available to public schools. In Trinity Lutheran Church of Columbia v. Comer, Chief Justice John Roberts wrote, “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.” The logic of this argument, of course, could extend to virtually every expense incurred by religious schools; if public schools are obligated to request state funds for textbooks, transportation, and teacher salaries, then the government should pay for those at religious schools as well. And that’s the way the law is heading.

Last week, three Justices found a way for churches to gain access to government funds. The Court declined to hear Morris County v. Freedom from Religion Foundation, a case in which the New Jersey Supreme Court had held that churches could not receive government funds allocated to programs for the preservation of historic buildings. But Justice Brett Kavanaugh, joined by Justices Neil Gorsuch and Samuel Alito, argued that depriving churches of these funds amounted to discrimination on the basis of religion. (They did agree with their colleagues, though, that there were procedural issues with the case that made it unsuitable for Supreme Court review at this time.) As Kavanaugh wrote, “Governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Free Exercise Clause.”

What the conservatives are doing, in effect, is reading the establishment clause out of the Constitution, and turning almost every issue into a free-exercise case. In this reading, any denial of government benefits to a church can be seen as discrimination which amounts to a denial of free exercise—and the conservatives are making the same move with respect to individuals. Conservatives now cite the free-exercise clause to allow religious people to exempt themselves from obligations that are binding on all other citizens. This currently comes up most often in the context of people who want to discriminate against gay people as an expression of their religious beliefs.

The Court first engaged with this issue in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In 2018, the Justices affirmed the right of a baker in Lakewood, Colorado, to refuse, on religious grounds, to make a wedding cake for a same-sex couple. The Court’s opinion, one of the last written by Justice Anthony Kennedy before he retired, did not directly address the rights of shopkeepers to keep out gay customers, but other business owners have taken up the baker’s cause. Around the country, florists, printers, photographers, videographers, and calligraphers have sought to exclude gay and lesbian customers on religious grounds. Several of these cases are working their way through the courts, and one will probably reach the Supreme Court in the next year or two.

The Supreme Court rarely moves in great leaps to new positions. Cases show how the Court’s majority is moving, and the decisions, over time, generally trend in the same direction. When it comes to religion, the Court’s direction is clear—and Trump’s core supporters have every reason to be pleased with it.

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