On April 19, the Supreme Court will hear oral arguments in Trinity Lutheran Church v. Comer — a case that the American Jewish community should follow closely. As the plaintiff’s name indicates, the case involves a Christian church’s attempt to vindicate its religious-liberty rights. For years, Christians have led the effort to protect the Free Exercise of Religion guaranteed by the First Amendment. This case demonstrates the importance of that effort to Jews and members of all minority religions.
In this case, the plaintiffs are challenging the constitutionality of their exclusion from a state program that reimburses playgrounds for the cost of installing rubber padding to protect children from scrapes and bruises. The state of Missouri — apparently fearing the religious indoctrination that commonly occurs on swings and slides — discriminates against religious organizations by barring them from the program.
Missouri justifies excluding the church based on a state constitutional provision that notes that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Taken to its logical conclusion, such a requirement would have devastating consequences for religious groups. Fortunately, such anti-religious discrimination violates the federal Constitution.
The State argues that its actions are constitutional based on Locke v. Davey, a Supreme Court precedent that permitted states to exclude “the religious training of clergy” from scholarship programs. Locke should be overturned because it allowed the state to discriminate against religious students in the dissemination of a generally available public benefit, without a sufficiently compelling reason. Even assuming it was rightly decided, however, it does not support Missouri’s decision to discriminate against plaintiffs based solely on their status as a church.
Locke was a narrow decision. The Court concluded that the prohibition resulted from the government’s desire to distance itself from church leadership, rather than an animus toward religion. Funding was available to religious students in religious schools — it was only denied to students training to become clergy.
The Supreme Court has repeatedly — and correctly — found that the First Amendment prohibits preventing religious people from participating in generally available programs because of their religiosity.
That excuse is not applicable here. The church playground is excluded from the program exclusively because of its status as a religious institution. The Supreme Court has repeatedly — and correctly — found that the First Amendment prohibits preventing religious people from participating in generally available programs because of their religiosity. To decide otherwise would permit states to deny religious groups access to police and fire protection under the guise of erecting a wall of separation between Church and State.
The Orthodox Union (OU) submitted a friend-of-the-court brief supporting the plaintiffs. It lists programs that might be denied to religious groups if the Court rules in favor of Missouri. The list includes programs aimed at anti-terrorism preparation, asbestos removal, and combating school violence. Justice Scalia warned of similar consequences in his Locke dissent. Missouri does not — and in fact could not — dispute that these are the potential consequences of their position.
The constitutional provision that Missouri claims requires it to exclude churches is related to the infamous anti-Catholic Blaine amendments (named after the late Maine congressman, James G. Blaine). The idea that a state might use such a provision to discriminate against minority religions is not a mere fanciful hypothetical.
Blaine Amendments are constitutional amendments that were adopted by nearly 40 states in the late 1800s. At that time, public school curricula were heavily influenced by Protestantism. Jewish and Catholic parents sent their children to private schools, in part, to avoid that religious influence. Many of these private schools received state funding. The Blaine Amendments were intended to cut off state funding to schools attended by disfavored minority religious groups —especially Catholics. Many of the debates surrounding the passage of these amendments betray a profound anti-Catholic bias.
Devorah Goldman first learned about Blaine Amendments when she arrived in DC to work as a fellow for the OU’s legislative advocacy center in 2014. “I was surprised to find not only that an archaic anti-Catholic sentiment had made its way into 38 out of 50 state constitutions, but that these anti-Catholic laws have had a profound, tangible impact on Jewish institutions as well,” she said.
“During my year at the OU, we wrote legislative memos, organized advocacy trips, and sought to spread the word about what Blaine Amendments mean for the Jewish schools and shuls that so many in our community depend on,” said Goldman, who has since worked in education for a Senate office. “This court case represents a unique opportunity for the Jewish community to stand up for the rights that Catholics and other Christian groups have been defending since Blaine Amendments were first adopted.”
The exorbitant cost of Jewish day school tuition is often described as a “crisis” facing the community. If Missouri prevails in this case, opponents of state aid to day schools will argue that any such funding — whether in the form of vouchers or clearly nonreligious funding such as grants for transportation or secular textbooks — violates their state’s Blaine Amendment. As important as this case is to people of all faiths, it has a particular relevance to Jewish parents.
Groups such as the Orthodox Union, the Rabbinical Council of America, and Agudath Israel deserve credit for contributing in a supporting role, but the wider Jewish community has shown limited interest in an issue that significantly and directly impacts their lives. It is time for that to change.
Howard Slugh is an attorney practicing in Washington, D.C.