Normally, the most notable part of a Supreme Court decision is not the dissent. Except for the times when the late, lamented Antonin Scalia would express his fury at what he considered to be a moronic decision by his peers, justices who disagreed were not all that interesting in their disagreement. Even Oliver Wendell Holmes, the so-called “Great Dissenter,” wore on your nerves with his righteous indignation.
But Monday, Justice Sonia Sotomayor penned a dissent that is much more interesting in its transparency than the relatively mild majority opinion written by Chief Justice John Roberts in a case being watched by everyone interested in the tension between church and state, and the status of that crumbling wall.
In Trinity Lutheran Church of Columbia v. Comer, a seven-person majority held that the state of Missouri could not single out faith-based organizations for exclusion from grants that would have paid for property maintenance. The facts are fairly simple. Trinity Lutheran is a church that also ran a preschool program. In 2012, it applied for a grant from a state program to make playgrounds safer. Its request for funds to resurface its playground was denied based on a state constitutional provision that forbade the use of taxpayer funding to religious institutions.
That provision was modeled on what is known as the “Blaine Amendment,” a proposed amendment to the U.S. Constitution based in an antipathy toward Catholics. Over a century ago, in the wake of the Civil War, a Republican congressman named James Blaine proposed the amendment to prevent, in part, public money going to parochial schools that were filled with immigrant children.
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Many states adopted the language of the original federal amendment, even though it had failed to muster a two-thirds majority in the Senate. Some of these “mini-Blaines” are still on the books.
Which brings us to Missouri.
Trinity Lutheran sued the state, claiming that the only reason it was being denied funding was because it was a religious institution. And, as Roberts wrote in a “you think?” moment, that’s pretty self-evident:
“There is no question that Trinity Lutheran was denied a grant simply because of what it is … a church.”
So the only question that remained was, is this exclusion constitutional?
Seven members of the court, including some of the more liberal justices, said “no.” According to the chief justice, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”
I like the use of the word odious. Every now and then a Supreme Court justice has to tell it like it is, and cut through that genteel lexicon that makes it difficult to believe that there are human beings on that highest of benches. This was not simply an illegal, distasteful bit of discrimination against people of faith. It was odious.
Of course, not everyone would agree with that conclusion, including most of the members of the ACLU. Every time there is a suggestion that public funds are going to assist religious organizations, the fearsome prospect of a theocracy raises its head. Whether it be a caliphate or Christendom, the church-state separatists are immediately mobilized.
And one of the true believers, excuse the pun, sits on the court. Sotomayor, a woman who wore a Catholic school uniform for many years, railed against the majority decision. Her words seem particularly over the top, because Roberts took great pains to limit the majority holding to cases involving “playground resurfacing,” and reserved judgment on whether it could be extended to other types of discrimination. It was more about discriminating against entities solely because they were churches or, as Roberts wrote “churches need not apply.”
Sotomayor wasn’t buying that. She clearly saw the diagrammed sentence on the wall:
“If this separation (of church and state) means anything, it means that the government cannot … tax its citizens and turn that money over to houses of worship. … The court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”
That’s powerful stuff.
Sotomayor sets this up as if the poor taxpayers of Missouri were being forced to pay to prevent some Christian kid from scraping his knees on a rough playground. She makes this seem as if it’s then a slippery slope to having taxpayers subsidize the erection of a Mormon Temple, or buy new central air for a mosque. Funny, right?
Well actually, maybe not. While I strongly reject the idea that the wall between church and state was built to keep religion out of the public square, it is clear that this case isn’t just about playgrounds. It could change the way that we think about people and places of faith, and their relation to the secular state.
Christine Flowers is a lawyer and a columnist for the Philadelphia Daily News. Readers may email her at email@example.com.