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Gorsuch and Thomas team up again in religious liberty win

Justices Neil Gorsuch and Clarence Thomas have teamed up again, this time in a major religious liberty case involving a church, some monkey bars, some tire scraps, and a legal relic of 19th-century legal persecution.

On the last day of this session, the court ruled in favor of the petitioner in Trinity Lutheran v. Comer – saying that denying funds for a church playground based on religion is a violation of the First Amendment right to free exercise.

The case started in January 2013 after the state of Missouri denied a preschool access to a statewide public safety program that provides recycled tires for playgrounds simply because the preschool was operated by a church. The preschool wanted to remove the pea gravel surfacing encompassing the recreational space and replace it with safer tire scraps.

In a 7-2 ruling authored by Chief Justice Roberts – in which Justice Kagan joined from the bench’s liberal wing – the court ruled that “The Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status,’” citing a 1993 religious liberty ruling.

“Applying that basic principle,” it continues, “this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”

Missouri is one of the majority of U.S. states that have what’s known as a Blaine Amendment. These are legal leftovers from the 19th century that were dreamed up during a fervor of anti-Catholic animus in American history.

Back then, the intent was to make sure that Catholic schools did not receive funding on par with heavily Protestant public schools; now, in the majority of U.S. states where these laws exist, critics say that the provisions serve as a stumbling block to school choice programs and – in this case – playground safety programs.

The court found that the state of Missouri had discriminated against the church based on its status as a religious institution, since the playground was to be used by kids and families of all faiths and traditions.

“[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church,” the court concludes, “is odious to our Constitution all the same, and cannot stand.”

However, Gorsuch and Thomas took issue with a footnote that left open the possibility of future discrimination against churches similarly, if it were determined that the funds would go to a religious use.

The pair of originalists joined the majority partially, but made clear their reservations about that particular distinction.

“[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use,” reads a concurring opinion from Thomas. “Respectfully, I harbor doubts about the stability of such a line.”

“The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long,” he continues, “leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).”

Conservative legal nonprofit Alliance Defending Freedom, which represented Trinity Lutheran in the case, is nonetheless pleased with the outcome. With today’s victory, the ADF takes home its fifth Supreme Court win in seven years.

“The government should treat children’s safety at religious schools the same as it does at nonreligious schools,” reads a statement by ADF senior counsel David Courtman. “The Supreme Court’s decision today affirms that commonsense principle and the larger truth that government isn’t being neutral when it treats religious organizations worse than everyone else.”

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