"US Supreme Court West Facade" by Matt Wade / CC BY-SA 3.0

The Supreme Court Is Quietly Changing the Status of Religion in American Life

Mar 12, 2019

By Jeffrey Toobin

Donald Trump may be imperilled by the ever-growing number of investigations into various avenues of his conduct, but his agenda continues apace at the Supreme Court. There, the President’s appointees and their allies are making quiet progress on another key goal of his political base: transforming the place of religion in American life. The changes involve both religion clauses of the First Amendment—the one that prohibits the “establishment” of a state religion and the one that guarantees the “free exercise” of Americans’ faiths. The short version of what’s going on is that the establishment clause is out, and the free-exercise clause is in.

During the past several decades, the Court has defined the establishment clause to limit the ability of churches and other religious institutions to receive subsidies from taxpayer funds. The receipt of government money, after all, defines a state religion. But, in recent years, conservatives have contrived various means to obtain access to government money for religious entities, such as schools, and the lawyers representing them are receiving an ever more sympathetic hearing at the Court.

The key recent precedent came in 2017, when the Justices held that Missouri was obligated to offer financial grants for the resurfacing of a playground at a parochial school, if the state was going to make the same grants available to public schools. In Trinity Lutheran Church of Columbia v. Comer, Chief Justice John Roberts wrote, “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.” The logic of this argument, of course, could extend to virtually every expense incurred by religious schools; if public schools are obligated to request state funds for textbooks, transportation, and teacher salaries, then the government should pay for those at religious schools as well. And that’s the way the law is heading.

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