A Mormon’s Guide to Trinity Lutheran

Carolyn Homer brings us this Mormon’s guide to Trinity Lutheran, yesterday’s Supreme Court religious freedom case.  Carolyn Homer is an attorney and religion constitutional law enthusiast in Washington, D.C.

The case is deceptively simple. The State of Missouri has a program where it recycles used tires into springy playground surfaces. Trinity Lutheran, a church & school in Missouri, applied to get funding for those recycled tires. Missouri denied the application. Missouri’s sole basis for the denial was that Trinity Lutheran is a church. The Missouri Constitution says “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

These facts have sparked debate, including within Mormon circles, over what “religious freedom” means.[1] Does “religious freedom” mean that churches must receive government benefits? [2] Or does “religious freedom” mean that churches should be self-reliant, without undergoing state scrutiny and having to concoct “secular” reasons to cozy up to state money?[3]

After arguments yesterday it’s obvious that a solid majority of the Supreme Court thinks that Trinity Lutheran should be eligible to receive recycled tires for its playgrounds just like all other Missouri schools.[4] The most devastating portion of Missouri’s argument came when their lawyer conceded (see pages 31-37) that under this same provision of Missouri’s Constitution, churches would be denied funding for disaster-relief, terrorist-relief, and security-enhancement. This prompted Justice Breyer to express concern that Missouri could also deny police and fire protection. Where the state interest is community safety, not religious worship, all members of the community — including churches — should benefit alike.

So chalk this one up as a victory for churches. It appears that the latent trickier issues will have to await their day in court. I can readily imagine future grant applications to build sanctuaries or private religious schools as part of a local government’s “secular” economic development plan to “beautify the community.” [5] Those trickier issues are ones I would encourage Mormons to think deeply about.

When James Madison famously articulated the reasoning behind the Establishment Clause, he argued that religion is better off when it doesn’t have to rely on state support. Government funding “is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world.”

This was a rationale Brigham Young endorsed. In the April 1873 General Conference he delivered a long discourse about rejecting government-funded schools.

I understand that the other night there was a school meeting in one of the wards of this city, and a party there—a poor miserable apostate—said, “We want a free school, and we want to have the name of establishing the first free school in Utah.” To call a person a poor miserable apostate may seem like a harsh word; but what shall we call a man who talks about free schools and who would have all the people taxed to support them[?]…We have no other schools but free schools here—our schools are all free. Our meetings are free, our teachings are free. We labor for ourselves and the kingdom of God. But how is it with others? Have they a meeting without a plate, basket, box or hat passed round? … Are the “Mormons” eternally begging and sending round the hat and the plate, and asking every stranger, “Have you a sixpence for me?” No, we do not want your money, we have enough of our own, and we earned it and got it honestly, we have not stolen it nor lied for it either. Now that I am upon free schools I say, put a community in possession of knowledge by means of which they can obtain what they need by the labor of their bodies and their brains, then, instead of being paupers they will be free, independent and happy[.]

In this speech Brigham Young emphasized Mormon self-reliance and disparaged the entire notion of government-supported schools. This was, perhaps, done to head off Mormon involvement in a swirling national debate about the religious character of public schools.[6]

In the 1870s, America’s public schools were devoted to the instillation of Protestant mores — they exuded blatant anti-Catholic (and, for that matter, anti-Mormon, anti-Muslim, and anti-Jewish) animus. To prevent any Catholic indoctrination in state schools, President Ulysses S. Grant’s 1875 State of the Union called on Congress to pass a Constitutional Amendment “making it the duty of each of the several States to establish and forever maintain free public schools adequate to the education of all the children in the rudimentary branches within their respective limits, irrespective of sex, color, birthplace, or religions; forbidding the teaching in said schools of religious, atheistic, or pagan tenets; and prohibiting the granting of any school funds or school taxes…for the benefit or in aid, directly or indirectly, of any religious sect or denomination.”

While President Grant’s overall sentiment resonates today, the reality was that this language was veiled code for discrimination against Catholics. Senator James Blaine took up the charge, crafting the resulting federal “Blaine Amendment,” which narrowly failed. 38 states responded by passing their own versions, known as “Baby Blaines.” (The Missouri provision at issue in Trinity Lutheran was one of them.) Religion historians and lawyers have long recognized that these Blaine Amendments were “born of bigotry” and “pervasive hostility to the Catholic Church.” In response to the Baby Blaines, the United States Catholic Church spent the latter part of the 19th Century setting up their own extensive network of schools.

So consider this complex history the next time a lawyer or pundit or religious leader cries “religious freedom.” Those words alone are not an answer. Protestants in the 1870s proclaimed religious liberty too; but no religion should be subject to the state censure the Catholics and Mormons then endured. Their self-reliance in those years is downright impressive. But no matter how self-reliant a religion is, it doesn’t make sense to discriminate against them when the state provides clearly secular programs, like rebuilding a city after an earthquake. That’s ultimately why Trinity Lutheran will succeed at getting its recycled tires. I just hope this does not encourage both church and state to increasingly proffer “secular” reasons as a pretense to either benefit or harm religion.

Mormons’ unique place in American history, transitioning from the persecuted religious fringe to the conservative religious mainstream, requires us to scrutinize each invocation of “religious freedom.” Often churches like Trinity Lutheran will win, but sometimes vigilance in protecting all aspects of religious liberty will mean churches must fend for themselves. As recognized by both James Madison and Brigham Young, religion is weakened when it must curry state favor and depend on state support.

 


[1]  The Church of Jesus Christ of Latter-day Saints is supporting Trinity Lutheran.  The Church-owned Deseret News’s coverage has been balanced.  Missouri’s lawyer who argued the case is Mormon.

[2]  Trinity Lutheran has a strong argument that Missouri’s denial of shredded tires unconstitutionally discriminates against religion.  In the last 25 years, the Supreme Court has consistently held that it does not violate the federal Establishment Clause for the Government to give religious institutions the same benefits it gives all similarly-situated organizations.  In fact, the denial of governmental benefits to a religion just because it’s a religion may violate the First Amendment (or the Fourteenth Amendment’s Equal Protection Clause) in other ways.  As a result, state colleges can give money to the official student newspaper and a student Christian newsletter; schools can rent out their gyms for both outside math competitions and religious pro-life lectures; elementary schools can host 4-H and chess clubs and Bible clubs as approved extracurriculars; churches qualify for tax-exempt status just like other non-profits; the list goes on.  Here, Trinity Lutheran just wants shredded tires like all other playgrounds can get.

[3]  The State of Missouri is defending the denial of the tires on the basis that strict rules are desirable when government and religion mix.  The point is to prevent any appearance of improper intermingling of government and religion.   In the last 50 years, the Supreme Court has an equally long line of cases (including a key one involving the LDS Church) explaining that the Government can draw bright lines around religion to avoid “entangl[ing] church and state.” It is desirable for laws to “effectuate a more complete separation of the two and avoid the kind of intrusive inquiry into religious belief” that the Establishment Clause forbids.  On this basis, the Supreme Court held that it was proper for Washington to have a scholarship program for high-achieving students across all sorts of majors — except theology.  Missouri’s argument is that it is a short step between giving state money to build a playground for a church and giving state money to build a church itself.

[4]  Be wary of falling prey to the 5-4 liberal/conservative hype on religion cases.  Justice Kagan, in particular, is thoughtful on religion law.

[5]  The last time the Supreme Court addressed a state’s attempt to provide “religiously gerrymandered” public funds to a school district, the support was struck down on Establishment Clause grounds.

[6]  When government-funded schools became popular in Utah anyway, the Church responded in the 1880s by establishing a board to oversee a system of Mormon schools and by introducing the Seminary program.

Comments

  1. As I read Madison, particularly in the “Memorial and Remonstrance against Religious Assessment,” he is not quite saying that religion should not receive government funds. Rather he is saying that the state should adopt a position of “non-cognizance” towards religion, or a total official non-acknowledgement of whether or not a particular group or person has a religious affiliation. So, the chess club and the Bible club get the same standing because, in the official understanding of the state, there is no material difference between Bobby Fischer and Jesus Christ (a view that Bobby Fischer also held, but for different reasons).

    This has always been the way that I have tried to look at Establishment Clause issues, which does indeed give used tires to Lutherans. Not insignificantly, it gives Pell Grants to Methodists at the institution that currently employs me, so I have a stake in all this.

    Also, great post. I like having you around these parts.

  2. Great post. Thanks.
    Michael’s Pell Grants to Methodists is an important case. However one might argue the permissive position under the Establishment Clause (non-cognizance toward religion means making the same grants available to students at religious-affiliated schools as to state schools), there are two complications:
    1. It is implicit in such argument that the religious-affiliated school is not the church. That’s a distinction that religious freedom advocates want to argue the other way at times.
    2. Pell grants are in fact the avenue through which the OCR enforces Federal civil rights laws that prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age. While I happen to approve this time around, as a matter of my own politics, it seems to me that this is a very close parallel to the “instillation of Protestant mores” in the 1870s, that the OP describes and that Brigham Young inveighed against.

  3. I had always considered Pell Grants as falling under the Zelman framework — technically, because they are “channeled through intervening private choice” because they are grants to students and not to school — they’re less constitutionally concerning.

    But I know the reality is more complex than that, when it comes to government student aid and college.

  4. Christian, I want to mine just a shade of difference between what I said and the notion that “non-cognizance toward religion means making the same grants available to students at religious-affiliated schools as to state schools.” I think that a “non-cognizance” approach would be fine with limiting financial aid to state schools. The problem comes with the difference between religiously affiliated private schools and non-religious private schools. The approach I favor would say that a private school is a private school, period. Whether it is religious or not should have nothing to do with the government’s decision to make funds available to it.

    Where this gets particularly messy is in the second thing you mention, which is the use of student aid funds to enforce Title IX and other civil rights measures. I would not say that this imposes an unfair burden on religious schools–they can choose to accept the funds or not accept the funds on the same terms as any other private school. However, the granting of exemptions to Title IX regulations to religious schools* breaks (in my opinion) the non-cognizance wall. When the state grants these exemptions, it becomes cognizant of religion in a way that makes me uncomfortable.

    See Kif Augustine’s excellent work here: https://law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v65/Augustine-Adams_Final%20to%20Sheridan.pdf)

  5. The fact that Jim Layton is a Mormon should be irrelevant. Just as a good judge should at times find himself making decisions that he finds personally repugnant, a good advocate should similarly find himself making arguments that he finds supportable by the law and the evidence, even when he disagrees with the conclusions those arguments lead to.

  6. I agree Jim Layton being Mormon is legally irrelevant (i.e. he’s a great lawyer and will zealously represent his client’s interest and Missouri’s legal position) — but it’s still a fun fact for a Mormon blog.

  7. Is it possible that this case will be able to “Tear down this Wall” that never actually existed in the Constitution? Doesn’t the Constitutional require a moral people who will self-govern themselves?

  8. Great post, Carolyn. Thanks for putting it together. Your point that religious freedom is complicated is so important. We can say we support “religious freedom” in the abstract, but in the real world it doesn’t lend itself to a sound byte so well, and there are a lot of implications to think through in every case.

  9. No one here seems to care at all about the safety and health of the children on these used tire playgrounds. Tires are made out of some of the most toxic substances in the world. These substances continue to exude carcinogens for a very long time meanwhile sending adults to doctors and hospitals who were formerly children on these playgrounds. Open your car window for just a few seconds while on the road this summer to do your own test.

  10. Yes, no one is concerned about that, millermsrm60aol.