Law & the Courts

Legal Radicals Don’t Want the ‘Separation of Church and State’

(Photo: Lucian Milasan/Dreamstime)
They want more state, less church.

It’s been interesting to read the reaction to Monday’s Supreme Court decision in Trinity Lutheran Church of Columbia v. Comer, a case holding that the state of Missouri couldn’t exclude churches from a program using recycled tires to resurface playgrounds. On the one hand, it was unremarkable. Routine, even. The court majority was 7–2, and it was the latest in a long line of cases holding that governments can’t exclude religious individuals or institutions from otherwise neutral government programs. In fact, given these precedents, it would have been a legal earthquake had the court ruled any other way. Decades of case law would have been called into question.

Secular legal radicals (including Justice Sonia Sotomayor) were apoplectic. To them, this case crossed a Rubicon. A government program directly benefited — gasp! — a church. Never mind that the benefit was a softer playground surface, the mere fact that government benefits flowed directly to a house of worship created a legal DEFCON 1. Here was Sotomayor, starting her dissent:

This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.

Not to be outdone, influential legal liberal Erwin Chemerinsky wrote an alarmist piece at SCOTUSblog decrying the “crumbling wall separating church and state.” “Never before had the Supreme Court held that the government is required to provide assistance to religious institutions,” he wrote. “The noble and essential idea of a wall separating church and state is left in disarray, if not shambles.”

This rhetoric is misleading, at best. For several decades, the Supreme Court has been applying precedent that advances a simple principle: When the government establishes a neutral program for public benefit, it can’t exclude citizens or institutions from participating in that program simply because they’re religious. Here’s a partial list of precedents advancing that basic doctrine:

Widmar v. Vincent (1981) — holding that a public university couldn’t exclude religious student groups from using university facilities.

Lamb’s Chapel v. Center Moriches Union Free School District (1992) — extending Widmar to public secondary schools and allowing a church access to classrooms and other facilities.

Rosenberger v. Rector and Visitors of the University of Virginia (1995) — requiring a public university to use student activity fees to fund the printing costs of an Evangelical Christian student publication on the same basis as secular publications.

Good News Club v. Milford Central School (2001) — extending Widmar and Lamb’s Chapel all the way down to elementary school and granting Christian groups access to public-school facilities for religious after-school programs.

I could go on — and include hosts of lower-court rulings that all apply variations on the same basic principle. Religious citizens aren’t second-class citizens, and religious organizations aren’t second-class organizations. They stand on equal footing with secular citizens when applying to participate in state programs. It’s that simple.

The amount of ongoing litigation in this arena is indicative not so much of confusion but rather of the level of anti-religious hostility in the secular leftist legal establishment — at all levels of government. During my time as a First Amendment litigator, I can’t tell you how many cases I filed and demand letters I sent applying these precedents to factually identical or near-identical controversies.

Each and every step of the way, the radical legal Left fought to either roll back existing precedent or stop its obvious extension to analogous situations. Every step of the way, the cry went up: “What about the separation of church and state?”

Does anyone possibly think that even Jefferson would believe that the state of Missouri is ‘establishing’ a church by helping resurface a playground?

After a while, one wearies of the argument. The phrase “separation of church and state” is nowhere in the First Amendment. James Madison’s Bill of Rights should not be distorted by a misreading of a single Thomas Jefferson letter. Does anyone possibly think that even Jefferson would believe that the state of Missouri is “establishing” a church by helping resurface a playground? But it’s really not a historical argument at all. To the radical legal Left, “separation of church and state” really means “more state, less church.”

In other words, as the state expands, the church should recede. From education to welfare to health care and beyond, the state reaches ever deeper into realms the church has occupied since before the founding of our nation. It advances secular, centralized control, and its advocates often despise the values and viewpoints of the church it seeks to replace. To these advocates, granting access, benefits, or (God forbid) funds to religious institutions is quite literally aiding the ideological enemy.

Who are the radicals here? Are they the individuals and institutions who seek equality under the law? Or are they the individuals and institutions who believe not just that the state can discriminate against people of faith in its neutral government programs, but that the state must deny them the benefits they willingly provide their secular counterparts?

This battle has raged since the dawn of the modern welfare state, and it will rage through the decades to come. Fortunately, for now, there is considerable precedent in favor of neutrality. There is broad Supreme Court consensus that religious status doesn’t, by itself, justify state discrimination. But as Sotomayor’s fierce dissent and Chemerinsky’s piece demonstrate, that consensus remains under sustained and relentless attack.


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