The most revealing cases can sometimes come from the most boring facts. Last week, my former colleagues at the Alliance Defending Freedom filed their opening brief at the Supreme Court in perhaps the most important case about recycled tires in American constitutional history. Yes, I said recycled tires.
Missouri — because it purports to love children and the environment — created a program that uses scrap rubber from old tires to resurface playgrounds to make them safer. The program is funded through a surcharge on new tires, rubber that would otherwise pack landfills is put to good use, and kids bounce when they fall. Everyone wins, right?
“Blaine amendments” are a short-hand term for state constitutional provisions inspired by former speaker of the House James Blaine. The intent — motivated by anti-Catholicism — was to pass a federal constitutional amendment prohibiting the use of any taxpayer funds to aid any schools “under the control of any religious sect.” While the amendment failed in the Senate, it swept like wildfire through the states, and now at least 36 states have some form of Blaine amendment on the books.
The lower courts ruled against Trinity Lutheran, with the Eighth Circuit Court of Appeals noting that Missouri didn’t have to exclude the church from the program, but that it could if it wanted — in part because of the state’s “long history of maintaining a high wall between church and state.” Yes, because there’s no telling the religious oppression that will occur if Christian kids enjoy the same safety benefits as kids at the public playground down the street. Nothing says “established religion” like a rubberized playground.
But this is exactly what some on the left want. When you combine cases such as Trinity Lutheran with the far-more-publicized sexual-revolution cases such as Little Sisters of the Poor or Hobby Lobby, you see the profound impact of expanding government in an era of hostility against the faithful. When government grows, there will always be those who say that religion must therefore recede. In the case of the Little Sisters of the Poor, a traditional zone of liberty is snatched away — with the radical Left arguing that the Sisters objections are rooted in a demand for “special favors.” In the case of Trinity Lutheran, even the request for mere equality is too much.The result is a “heads I win, tails you lose” political philosophy that always leaves religion in retreat. The Left loves the First Amendment — when it’s distorting the Establishment Clause and screaming to “get your rosaries out of my ovaries.” The Free Exercise Clause, by contrast, is a dead letter — as meaningless (in their eyes) as the hated Second Amendment. Indeed, given the tenor of the times, if a lawmaker tried to propose the Free Exercise Clause today, he’d likely face the full wrath of the entire social-justice coalition — from Apple to PayPal to even the NFL.
If Trinity Lutheran can prevail, it will strike a blow for constitutional sanity. Christians pay taxes too, and rubberized playgrounds no more establish a state religion than asking the fire department to extinguish a church fire endorses the Baptist faith. When it comes to faith, If the First Amendment can’t at least guarantee neutrality, it can’t guarantee anything at all.
— David French is a staff writer at National Review and a former senior counsel at the Alliance Defending Freedom. He still speaks on occasion at ADF events.