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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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+31 # chrisconno 2019-03-07 22:57
What about my free exercise? My free exercise to have my tax dollars not be used to promote a religion I find nothing about it believable. I don't believe in the holy inquisition 's right to decide what I want the children to be inculcated with. I don't want the children to be the haters the religious right seems to 'believe' is their right to force down our throats. Their god is no god I can believe in.
+9 # Robbee 2019-03-08 16:34
Quoting chrisconno:
I don't want the children to be the haters the religious right seems to 'believe' is their right to force down our throats.

- jess has nothing to do with christian religion

ask a preacher what would jesus do? - and he'll just screw it up!

the religious right is full of hate - pence is the anti-christ!

don't blake god? god has nothing to do with it!

no one ever got the bum deal jesus got from so-called rligion>
+30 # chemtex2611 2019-03-08 00:31
The justices are setting a dangerous precedent moving in the opposite direction from the majority of the public. It is only a small part of the religious community that wants to suck the government teat, most do not.

It is doubtful that the Supreme Court will be as solicitous of religious beliefs if the organizations at the center are Muslim, Bhuddist, or Shinto.

Moreover, there is still a large number of church goers who remember and keep the 10 Commandments. They were the leaders of the last pivot away from the Moral Majority. Justices Thomas and Kavanaugh may be SC justices, but there is still the shadow of prurient activity every time they speak or are noticed by the media -- this will never be forgotten by women and a majority of men.
+28 # USADUDE 2019-03-08 01:48
So can the non religious discriminate against the religious if it offends their non religiousness? I mean if the religious can discriminate why can’t atheists? What’s good for the hypochristians should be good for the Goose and Gander, no?
+23 # tedrey 2019-03-08 07:40
Will the Supreme Court demand that money be used to give subsidies to Muslim organizations? I doubt it. What about Scientology?

When the Court says "religious", they mean "Biblical" exclusively. That's their goal. Wait and see.
-12 # Rodion Raskolnikov 2019-03-08 09:53
Toobin -- "The receipt of government money, after all, defines a state religion."

No it does not. This is just an overbroad and false statement. It is the premise of Toobin's whole argument and it is false.

If what Toobin says were true, then all people who receive social security, medicare, child tax credits would be "state" controlled agencies. The fact is simply that nowadays, governments fund and support just about everything.

In my career, I have received dozens of federal research grants for all kinds of work in communities. I have never been an established state agency.

Churches and religious groups do a lot of social work. Some of it is not to my taste but they do have the support of other people. We live in a diverse culture. There are people who want their kids to go to a Christian, Jewish, Muslim, Hindu, or whatever summer camp. The government often provides funding so that these camps meet health and safety standards that all kids benefit from. That's the case with the state support for resurfacing the playground.

I think Toobin is just blowing smoke here. Government funding goes into every aspect of our lives today. It does not define a "state religion" or a state controlled agency of any sort.

The National Science Foundation gives about $85 billion dollars a year to all manner of projects that enhance our knowledge. I've received several of these grants. I'm not a state established anything. I try to do good and useful work.
+15 # economagic 2019-03-08 13:29
Are you arguing that federal funding of restoration of church buildings is consistent with the establishment clause? If so, why not the construction of church buildings de novo? I see this as a gray area, and I see such actions by radical Christian extremists (sic), including cases such as Masterpiece Cakeshop and the Hobby Lobby case, as a blatant effort to exert influence on laws and the government that certainly is NOT consistent with the establishment clause.
-2 # Rodion Raskolnikov 2019-03-08 15:07
I see it as a gray area, too. Governments grant "historic status" to some buildings and that impacts zoning and use of the buildings. For those reasons, governments often spend some money on building maintenance.

There is no doubt that religious groups to try to exert influence on the US government. It is gray. It depends on the nature of the influence.

The US government is the central sustainer of the Israel which does have an established religion and which discriminates against members of other religions. Israel is a "Jewish" state in ways the US will never be a "Christian" state -- even though some people want it to be this way.

How can the US regime support Israel with an established religion.

Funding building, playing fields, and other material things is really not funding a religion. These are just material things.

As you say, it is gray.

But the fact is that the real rulers of the US are Anglo-Christian s. They will never allow a Jew, a Muslim, a Hindu, etc. to be president. There is an established religion and it has nothing to de with federal expenditures.
+11 # economagic 2019-03-08 17:50
I don't think you read my comment carefully. The ONLY thing I said I thought was a gray area was the specific case involving federal funds to renovate a church building, and I personally would consider it over the line. I was NOT including in the gray area the Masterpiece Cakeshop and the Hobby Lobby case, which involved the alleged "right" of the owner of a business ostensibly open to the public to refuse to sell its goods or services to certain sectors of the public.
0 # Rodion Raskolnikov 2019-03-09 07:27
OK. your point stimulated me to think of other areas.

I said that in some cases I would support government funds going into renovating a church building -- if the building was of significant historical importance. But not for usual church use.
0 # Diane_Wilkinson_Trefethen_aka_tref 2019-03-10 14:50
Quoting economagic:
Are you arguing that federal funding of restoration of church buildings is consistent with the establishment clause? If so, why not the construction of church buildings de novo? I see this as a gray area. . .
The reason you see this as a “gray area” is that you have made the mistake of confusing government declared historical status with a church’s own declaration of historical status.

If the government bestows historical status on a building, then regardless of who owns that building, it is then that government’s responsibility to maintain it. However, if a religious sect declares that its church is an historical building, then it is that sect’s responsibility to maintain it. The issue is not who built it or who owns it. The issue is whether the building has been declared an historical site by the government.
0 # laborequalswealth 2019-03-11 08:41
I usually find your comment spot on, RR, but on this one you are way off base.

Here's the point: These churches, synagogues and mosque teach beliefs that I find absolutely morally abhorent. Why should MY tax dollars go to support beliefs that e.g. want to deprive my wonderful step-daughter, her wife, and their adorable son of their right to even be a family???????

If someone wants to believe something completely divorsed from reality, fine. But don't use MY money to do it and certainly don't give them my money when they use it to try to destroy the lives of people I love.
+1 # Robbee 2019-03-08 09:54
fake jesus?

you know - the onee who is not a socialist?

the one who lives by the golden rule?
+12 # economagic 2019-03-08 10:30
The problem is not so much the fake conservatism practiced by vandals such as the Federalist Society and other organizations claiming to promote "classical liberalism" as it is the "either-or," "black or white" mentality. Members of a religious body are entitled to practice their beliefs so long as they do not violate civil law. They are also entitles to maintain and rehabilitate historic buildings they own.

But they are no more entitled to public funds to do so than they are entitled to public funds to build new buildings. Today they can also solicit funding from the public at large.

Groups and individuals that claim to be promoting "classical liberalism" are actually claiming that innovations that were indeed liberating 300 years ago (such as "free markets" and corporations) are still liberal in the same sense today, when in fact they have become today's tyrannies.
+9 # Porfiry 2019-03-08 11:05
As a life-long Christian and clergyperson of nearly 60 years, I am horrified by these developments. When a particular point of religious views is supported by the government, that religious point of view starts to control the government -- and the government starts to control it. By the way, I am a beneficiary of the "free exercise" portion of the amendment. I served 18 years as a New York State chaplain in an institution for mentally retarded people. The rational was that, since these folk were prevented from free exercise of their faith by being removed from society, the state was obligated to provide such services. Thus also military and prison chaplains.
+2 # Rodion Raskolnikov 2019-03-08 15:11
Do you object to "in God we Trust" on US money. Or the court room oath to "tell the truth so help me God." Or how about politicians being sworn into office with their hands on the Bible. There are very many instances where religion and the state are intertwined.

To me, the establishment clause pertains to the government's direct discrimination against individuals who do not belong to the state established religion. There are many such states: Israel, Saudi Arabia, Iran, and so on. I don't see this as a problem in the US.

There are religious schools that only members of their religion, but they are not public schools.
+3 # economagic 2019-03-08 21:21
I can't speak for Porfiry, but I DO object to all of the religious imagery and observances in our civic life. I tolerate them because I consider tolerance of foolishness that does not rise to a certain level of oppression or danger to the "general welfare" to be a virtue.

Clearly the Founders, most of whose ancestors were from the British Isles, had Henry VIII's Church of England in mind when they penned the establishment clause. They did not state in the Bill of Rights precisely what it meant, though their other writings would surely contain some clues. I suspect most of them would have distinguished between their Deism and "religion." But I suspect that some of them, while possibly accepting the funding of church buildings and even some church functions by local government, would have objected to such acts by the national government. And suspect that MOST of them would have objected to the discrimination countenanced by SCOTUS in the two cases mentioned above. They knew in their bones that "free trade" would be the lifeblood of the new nation. After all, they had signed the Declaration of Independence a few years earlier, in the same year that Adam Smith's famous "Inquiry" was published! Coincidentally it was also the year the Industrial Revolution really got up steam, with the introduction of James Watt's first commercial steam engine.
+7 # lfeuille 2019-03-08 22:32
Yes. I do object to it and all other government expression of religious sentiment.

The Bible isn't required for swearing in ceremonies. Some use the Koran. Others have used the constitution.

The establishment clause cannot mean what you say because there is no "established religion" in the US so why would the constitution protect people who don't belong to something that doesn't exist.

Religious schools are fine as long as they don't receive any state money. Religious charter schools are not fine.
-6 # BKnowswhitt 2019-03-09 03:43
See Webster #4 .. religion of the left .. global warming etc .. (4) : a cause, principle, or system of beliefs held to with ardor and faith .. the religion of the current LEFT .. and they do want to control via the Government ... USA Constitutional Republic .. Founders were Christian .. and knew from those abuses of power and the anarchy of the masses .. in a given situation took down many societies via .. their False Religions .. why we have the Electoral College to circumvent such a thing from happening via the Popular Vote .. and Anarchy of the Masses .. a stretch you say? See it happening right now with the Far Left in this country .. many here at RSN .. False Religion based on lies ..
-8 # BKnowswhitt 2019-03-08 15:32
No establishment of 'State' Religion
Free Exercise of 'Faith(s)' allowed

Religion: Webster Defined:
(1) : the service and worship of God or the supernatural
(2) : commitment or devotion to religious faith or observance
(3) : a personal set or institutionaliz ed system of religious attitudes, beliefs, and practices
(4) : a cause, principle, or system of beliefs held to with ardor and faith

In order to understand the ruling you must examine the exact tenets of the argument and their scope of argument. In this case the ruling was in favor to protect the rights of religious groups to freely practice their faith and thereby be afforded tax derived funds in the case of the school and church properties.

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.

Both three justices ruled on discrimination on the basis of religion in these cases thereby upholding the right of a group to practice their religious rights freely as protected by law.

The big one is not in play. State sponsored Religion .. that was not violated by any of these cases or needed to be ruled upon.

Cases are put forth to test the supreme court on their merit. These were important to the Christian Groups who submitted them. Toobin declaring this as radical move has no merit unless he gives us case histories and time frames to back it up ..
+4 # economagic 2019-03-08 20:24
I suspect the people who put up the Big Bucks to watch testosterone-cr azed men and a few women drive cars around in circles at (literally) breakneck speeds would be surprised to learn that theirh expenditures do not count as "sponsorship."
0 # Diane_Wilkinson_Trefethen_aka_tref 2019-03-10 15:22
Why are so many people so completely clueless when it comes to logic? Popularizing Constitutional clauses does NOT make those cartoon versions true interpretations of the actual clauses.

Regarding the First Amendment, there IS NO “establishment clause”, per se. There is only one clause that forbids Congress from making six kinds of laws. The first two listed are laws 1) respecting a religious establishment and 2) prohibiting people from exercising their religion. Thus when a secular law which does not address a religion is claimed to constitute religious discrimination under the First Amendment, that claim is invalid. The First Amendment was not written to give religious cover to acts that harm The People or to protect acts that defame The People by spoken or written word or to countenance riots or the storming of government offices. It was written to protect The People from laws written by an overzealous Congress, whether motivated by religion, narrow-mindedne ss, or an authoritarian desire to control The People.
+1 # Sir Morien 2019-03-10 22:58
Intriguing arguments but Toobin is merely pointing out the slippery-slope of rationale being deployed to entitle religious institutions and zealots to government resources and protections, respectively. The larger context of Trump-derived court sway to the far-right, the amplified and over-exaggerate d frustrations of the angry, aging, opioid-addicted white working class and the generally uneducated American voters who are vulnerable and subject to the fear-mongering of political pundits and conservatives must be calculated as well. We saw this before, during the Reagan years, and it dovetailed with the Grahams, Falwells, Swaggarts, Viguries, LeHayes' and other right-wing religious fundamentalists .

The Supreme Court was still a backstop against it where that is no longer the case! It has been more fully politicized than ever before and is regarded as the ultimate guarantee of a worldview steeped in male dominance, racial privilege and socioeconomic plutocracy.

Electronic churching, the coming clash between insufficient government revenues (from the GOP wealth transfer labelled "tax cut") and government agency enforcement capabilities, and the increasing lack of Porfiry's & Economagic's sense of aghast at such encroachments against the "establishment clause" by overbearance upon the "freedom clause" all prophecy a hellacious crucifixion of rights and freedoms in a diverse citizenry.

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