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Do you remember what the First Amendment says? “Congress shall make no law respecting establishment of an religion, or prohibiting the free exercise thereof;…” It applies to the states as well, thanks to the Fourteenth Amendment “The nation's top court last addressed the matter [of the Establishment Clause] in 2017, when it found that it was discriminatory for states to block taxpayer funds to religious schools, but limited their opinion in a footnote to the very specific case of playground resurfacing [involved in the case]. Justices Clarence Thomas and Gorsuch at the time took issue with that limitation.

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“In its ruling [in its 2019 case], New Jersey's top court declined to extend the Supreme Court's reasoning to historic preservation grants, saying the cases are distinct because playground resurfacing is not a religious use, but church repairs are.”

"The Churches are not being denied grant funds because they are religious institutions; they are being denied public funds because of what they plan to do — and in many cases have done: use public funds to repair church buildings so that religious worship services can be held there," wrote Stuart Rabner, the top judge on the New Jersey court in Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders.

In the Supreme Court’s review of the New Jersey ruling (wherein it declined to rule on the main decision in the case), Justice Brett Kavanaugh responded. He “seemed to take issue with that interpretation, decrying what he called the "No religious organizations need apply" rule that he said "appears similar" to the playground case.”

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One could fairly interpret the First Amendment to deny providing any public funds to any religious institution on the grounds that this amounted to establishing religion.

The 2017 playground case decided in Trinity Lutheran Church of Columbia, Inc. v. Comer that “The exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion.” This was a 7 or 2 decision by the Court, with the dissent by Justices Sotomayor and Ginsburg pointing out that even giving government money to a church for a playground could be considered “establishment of religion.” Refusing to give money to any church would not appear to prohibit the free exercise of religion.

If money were given to one church playground and not another, that would, of course, be discriminatory, although not a prohibition on exercising religion. But relying on the Establishment Clause to make a difference between a school playground and a church playground would appear to be reasonable. And certainly refusing to use public funds to repair a church building so that worship services would be held there would be totally justified under the Establishment Clause.

This is really a thorny issue. One could fairly interpret the First Amendment to deny providing any public funds to any religious institution on the grounds that this amounted to establishing religion. And one might fairly say that refusing to give money to a religious institution does not prohibit the free exercise of religion. The argument to the contrary is that refusing to give money to a religious institution when similar funds are given to non-religious institutions amounts to a burden on the free exercise of religion. Clearly, if you taxed the religious institution that would burden the free exercise. But declining to give money doesn’t prohibit anything.

The real problem with the Comer decision is simple English. To prohibit something means to prevent something affirmatively. The Founders in writing the Establishment Clause meant churches could not be taxed nor prevented from worshipping where they chose. They did not mean that every time a secular institution was given something that churches must be given the equivalent. If one were to follow Justice Kavanagh’s ideas, every time the government established a public library, it would have to establish the same for all the churches within its borders. I doubt that the Founders had that in mind.

Justice Kavanaugh’s approach is – unfortunately – the way that the Court is going in interpreting the constitution. Just remember how this Court interpreted the Second Amendment. The language of the Constitution is that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” For the 70 years or so before a supreme court decision in 2008, the supreme court and federal courts held that it only applied in the context of militias, the right of states to protect themselves from federal interference. And then suddenly the Court twisted itself into a conservative, anti-gun control position. This is the direction to which the Court has been heading since the year 2000.

michael hertz

Michael T. Hertz