Misinterpreting the Supreme Court

Nowhere in the Constitution can it be construed that the government is disallowed completely from giving any kind of money to religious organizations or institutions. Indeed the availability of Federal student loans and other State and Federal funding for religious students should be telling on that mark. For example students at Brigham Young University are not ineligible for Federal grants and loans.

Yet that seems to be the point of view of most. And it’s led to a rather startling misinterpretation of the Supreme Court’s decision in Trinity Lutheran Church v. Comer. First the facts.

Trinity Lutheran Church of Columbia, Missouri, wanted to replace the surfacing under their playground equipment. Not only would this be safer, but it’d bring them into compliance with certain laws, including the Americans with Disabilities Act. So for funding this venture, they turned to the Missouri Department of Natural Resources and a public grant program. Despite ranking high enough to qualify for their grant, they were denied only because they are a religious organization.

And they turned around and sued in Federal Court. And it was appealed eventually to the Supreme Court of the United States, who ultimately ruled in their favor.

And according to some journalists, it’s as if government is now going to start funding religious organizations. This is likely to be the most misinterpreted Supreme Court decision since Citizens United.

USA Today used the headline “Supreme Court imposes church tax” and said, “Americans should have the right to support only the religious groups of their choosing.” Oh the irony of this statement. By that logic, Americans should have the right to support only the institutions they wish. So let’s abolish all taxation and make everything voluntary. Except that’s not going to happen.

Ahead of that statement, USA Today said this, “By asserting that houses of worship have a legal right to public funds in some cases, the high court has imposed a modern-day version of a church tax on all of us.” Except that is NOT what the Supreme Court said at all. Nowhere did they say that religious organizations are entitled to public funds.

The Week used the headline “How the Supreme Court just dangerously undermined the separation of church and state” and said:

At issue is the Supreme Court’s decision today that the state of Missouri was required to provide funding to a church-run preschool and daycare center under a program to improve playgrounds. Sotomayor wrote a powerful dissent which again makes clear that her nomination was one of the best decisions Barack Obama made as president. But only Justice Ruth Bader Ginsburg joined it. Astonishingly, both Obama’s other nominee, Elena Kagan, and the Clinton nominee Stephen Breyer joined Roberts to vote to require Missouri to provide the funding.

No requirement was ever stated. Indeed the Supreme Court stated the exact opposite:

The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.

The Court even hammered this point by citing Associated General Contractors of America v. Jacksonville, 508 US 656 at 666 (1993): “[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.” So the Court is not saying the grants must be awarded. Only that religious institutions must be able to compete alongside secular organizations for public funds.

When the government offers a public grant program, it must treat all applicants equally. If religious institutions apply for the grant, the condition can rightly be placed on the grant that the funds in question are to be used only for some public benefit. The funds can’t be used, for example, to replace the Bibles or songbooks inside the church, or repair or replace the organ.

A playground or a parking lot, however, is a different story, so long as both are available to the public.

Indeed the Supreme Court left open the idea that a religious institution can be disqualified from a grant program if the funds will not be used for a benefit available to the public, referencing Locke v. Davey, 540 US 712 (emphasis theirs): “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”

So what about the fungibility of money? Let me just say that if you set aside that argument with regard to Medicaid funds to Planned Parenthood, you must also set that aside here.

So again to summarize: the Supreme Court said only that churches and other religious institutions must be given the opportunity to compete on equal standing with secular organizations. They didn’t say the grants must be awarded to churches and religious institutions. Nor did they say churches must be allowed to use the funds for a religious purpose.

To be clear, a church applying for a public grant to replace anything related to the establishments of faith — e.g. Bibles, crosses, etc. — will likely be denied that grant. And can be denied that grant under the Supreme Court’s ruling. But when it comes to publicly-available benefits a church provides, they must be able to compete on equal standing with secular organizations for public grants.

And while a church should turn to their congregation for funds for renovations or upgrades, such as the aforementioned playground resurfacing, there is nothing that says they must only turn to their congregation. They are free to seek funds elsewhere, including public grant programs, provided the public grant is used for a public benefit.