Law & Principles

Trent England | June 27, 2017

Playground fight ends at Supreme Court

Trent England

Smoke billowed from the doors as the firefighters jogged into the church, then again as they came back out into the snow.

“It’s the big table at the front. They had a thing plugged in up there; looks like the cord shorted out.”

“Like a bunch of little people?” the Captian asked. “Yeah. And animals.”

“Okay, we have to hold up. Hold up!” The Captain answered the looks from his firefighters: “That’s a crèche. A nativity scene. And it’s on the church altar. We can’t spend public resources in aid of religion….”

Thankfully, the Supreme Court yesterday poured cold water on such a conception of the separation between church and state.

Trinity Lutheran Church operates a preschool in Boone County, Missouri. The state, to encourage tire recycling and improve safety for children, gives grants for resurfacing playgrounds with rubber made from ground-up old tires. Trinity Lutheran applied for the program and would have received a $20,000 grant, except that the state refused to give the grant to churches.

Yesterday, the Supreme Court ruled in favor of Trinity Lutheran. Six justices signed the Court’s majority opinion, which concluded that “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 … and cannot stand.”

In all, seven justices sided with the Church, including appointees of Presidents Reagan, Bush (41), Clinton, Bush (43), Obama, and Trump. Only Justices Ginsburg and Sotomayor dissented.

The case means that government cannot deny equal treatment to religious institutions or religious people based simply on the fact that they are religious. The First Amendment protects religious liberty in two ways: It denies government any power to establish a state religion (the Establishment Clause) and it denies government any power to prohibit the free exercise of religion (the Free Exercise Clause).* The decision in Trinity Lutheran makes clear that providing fire protection or playground resurfacing grants to churches is not only not a violation of the Establishment Clause—to deny these things to churches is a violation of the Free Exercise Clause.

*Of course, the First Amendment originally limited only the power of the federal government; the text begins, “Congress shall make no law….” Later, the Fourteenth Amendment extended federal constitutional protections into the states, but without the specific enumerations of rights. Judges eventually determined to understand the meaning of the Fourteenth Amendment by looking back at the original Bill of Rights and “incorporating” most of those rights protections, through the Fourteenth Amendment, against the states. Thus “Congress shall make no law” became something like “the federal, state, or local governments shall make no law.” A powerful critique of incorporating the Establishment Clause against the states is found in “The Supreme Court v. The Constitution of the United States of America” by Michael Uhlmann.

Trent England David and Ann Brown Distinguished Fellow

Trent England

David and Ann Brown Distinguished Fellow

Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.

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