Posts Tagged ‘Free Exercise Clause’

Sometimes the issue du jour is living in your own back yard. That is the case with the recent Supreme Court case of Trinity Lutheran Church in Columbia, Missouri. The issue was whether that congregation was eligible to receive funds for the development of a playground through the Department of Conservation if it satisfied all application requirements. It had in fact satisfied the requirements but was denied anyway because Missouri’s Constitution denies state funding for religious organizations. The high court ruled in the church’s favor saying that it goes too far when public funds are denied for a cause as secular as a playground.

Even as a pastor and one who frequently comes down on the side protections of religious freedom, I have problems with the ruling. I’m glad the church is getting its rubberized playground surface. I am, however, unconvinced by the high court’s ruling.

The Constitutional question, of course, has to do with the First Amendment and its “non establishment” clause and “free exercise” clause. Government shall not establish any one religious organization nor shall it prohibit the free practice of any religious organization. The founders, in particular Thomas Jefferson, elucidated the principle behind the amendment as being one of separation between church and state. That is, they shall not be too intermingled – either positively or negatively.

The put this in context the Supreme Court has ruled in the past that government money might not be used to specifically fund scholarships for religious training. That would be direct government support of a religiously sectarian effort. Church playgrounds, though, have now fallen into another category, classed along with other community organizations with public facilities.

Missouri Attorney General Josh Hawley and Governor Eric Greitens applauded the decision. They, like a majority of the high court, fall on the side of what they would call religious liberty and against unfair treatment of churches simply because they are religious organizations.

Here is why I have problems with this and it is both a Constitutional argument and a theological one.

The free exercise clause prohibits any effort to block any form of religious expression. This was a corrective that the founders found essential as they experienced the opposite in the countries of their origins. Too often minority religions were persecuted mightily. In the case of a state church, non-authorized religions were seen as as illegal and immoral for state and church. Our founders knew they must protect religious freedom from religious tyranny.

Free exercise, however, is not absolute. Other laws may supersede this. In the case of the Branch Davidians, for example, laws about child endangerment superseded free exercise of religion; just because this is part of your religious practice that does not mean that it is acceptable according to other laws of the land. Free exercise is not absolute.

And here is where the problem begins. The Trinity Lutheran Church playground case was not about persecution, mass discrimination or the suppression of free exercise. None of that was in play. The case was not primarily about the free exercise clause – thought arguments presented it in that way. Rather, it was about the non-establishment clause.

Should state money, government money, be used to support any religious organization? The answer based on past rulings tends to be that exceptions may be made for government money channeled to churches if the uses of that money are designated for a community non-religious good, like the distribution of food, clothing and other resources. And they extended that reasoning to things like playgrounds.

Lots of kids from the neighborhood could use it, they said. But that is not really the core issue. This is the church’s playground used primarily for its congregation and its programs. Would we say at my congregation that everything in the church is religious and created with religious intent except the playground? We would not. We would never say that the playground is separate, that it’s secular. No, it is seen as part and parcel of our entire church’s mission and ministry.

I would say that by using government money to support a church in the development of a playground they are indeed violating the non-establishment clause and the principle of separation of church and state. You see, it’s not really about a playground – that’s just the presenting issue. This judgement is biased and tilting toward something else.

For all the “school choice” people who welcome government support of religious schools this is a convenient step in that direction. As a matter of fact that position is now being articulated by our Secretary of Education, Betsy Devos, who wants more money directed to school vouchers for religious schools. And that is how a judgement about a church playground is about more than a church playground.

I think we should be expecting more and more disregard of the non-establishment clause of the First Amendment. What we will see instead is more language about the free-exercise clause, hyperbole on steroids. Keeping the balance of those two is important but that balance is being diluted with this recent Supreme Court judgement on the Trinity Lutheran Church Playground.

Oh, I would be derelict not to mention the greatest irony of the moment: All of this is being brought to you compliments of the same people who are most often in the “states rights” camp. They don’t want some runaway federalism forced down on the states. Except they don’t seem to mind disregarding Missouri State Constitution when it draws a line in the sand between church, state and funding. But in this case, when it suits their purposes, I suppose it’s just fine to ignore it.