He Who Frames the Issue…

As I often tell my students, the most important thing I learned in law school was that “he who frames the issue wins the debate.” In other words, whoever is successful in defining what’s at stake generally prevails.

You can see that truism pretty vividly in debates over culture war issues like abortion and LGBTQ rights: if  abortion is the right to kill babies, the anti-choice folks win. If the issue is whether government gets to decide what a woman does with her own body,  choice wins.  If gay people are demanding “special rights,” the homophobes win; if they are  petitioning for equal rights, gays win.

Framing also plays an important role in the struggle to defend what some Americans call “religious liberty” and others call “privileging Christianity” (because let’s face it, no one is  arguing that Jews or Muslims should be able to ignore the civil rights of other Americans).

As readers of this blog know, I’m a pretty staunch defender of separation of church and state. But I’m also aware that those of us who look askance at the persistent efforts of self-proclaimed “devout Christians” to breach that wall of separation sometimes see theocratic threats in situations requiring a more nuanced response.

Case in point: Above the Law has posted an article about a case that will confront our newest Supreme Court Judge.

The state of Missouri has a program that reimburses non-profit organizations that resurface playgrounds with rubber surfaces made from used tires. The program is paid for by a state sales surcharge on new tire purchases. Missouri gets fewer tires in its landfills, the children of Missouri get a safe surface to play on, everybody wins.

I am definitely not a “cultural conservative,” but I don’t think this is a fair framing of the issue.

In my reading, the religion clauses of the First Amendment require government neutrality in matters of belief; that is, government may neither benefit nor burden the exercise of religion.

The Missouri case–at least, as described in this article–reminds me of an older case from Ohio, the name of which I’ve long since forgotten. As I recall, the state required that all third-grade children be vaccinated, and sent public health folks into the public schools to administer the shots. The question before the court was whether they could also provide the inoculations in parochial school classrooms. The court said yes: using third-grade classrooms where children were already gathered was for the convenience of the state, and giving children vaccines pursuant to a state requirement hardly constituted support of religion.

Missouri could not constitutionally fund classrooms or teachers or books at a religious school. But it is by no means clear how a voluntary program designed to solve a problem for the state (disposing of used tires) while enhancing the safety of children’s playgrounds (by providing a softer surface) would amount to support for religion, or for a religious institution.

Medicaid dollars routinely cover the costs of elderly patients in religiously-affiliated nursing homes; we recognize that the public dollars are buying medical and custodial care, not supporting religion.

The Missouri issue is complicated by the fact that there evidently isn’t enough money to fund every school that wants to participate; the state should be able to prioritize its own school systems. There are other factors to be considered that didn’t make it into the article. (For example, it appears that Missouri’s “rule” against funding religious institutions is a so-called “Blaine Amendment” in the state’s constitution. That changes the calculus somewhat.) There were obviously factors that persuaded the lower courts to rule for the state.

That said, those of us on the front lines of Establishment Clause defense need to acknowledge that not all payments to a religious organization are support for religion.

Determining what constitutes neutrality for First Amendment purposes depends upon how we frame the issue–and we need to approach that framing in good faith. (No pun intended….)


  1. Aren’t all states “funding religious institutions” in a sense by approving tax free status but providing all infrastructure and public safety benefits paid for by residents?

    The founding fathers framed simply and directly in the 1st Amendment; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” The enactment of laws “protecting only Christian religion” such as Indiana’s RFRA and the Hobby Lobby beneficiaries are aiding already established religious organizations while denying rights to other groups of people, most of whom are also Christians which leads me to an oft repeated old gangster movie comment, “We’ve been framed!”

    Here is a timely issue which I found NOT mentioned in the Indianapolis Star this morning or in the USA Today section. Was the annual White House Easter Egg Hunt held or not? Has the White House been violating the Constitution all these years by holding this blatantly Christian event and paying for it with our tax dollars?

    It is, I believe, 138 years old this year but the Trumps reportedly screwed it up by neglecting it and left town for the entire weekend in their third White House location. Our Christian CEO, Mike Pence, is in Seoul, Korea, over this Christian holiday; did he leave town to protect his Christian reputation or for self protection? This entire situation, in the words of the King of Siam, “Is a puzzlement!”

    This is also Passover season; I wish all of you a Happy Religious Season whatever your personal situation. Will this start another “religious war” such as Happy Holidays vs. Merry Christmas causes every year?

  2. Varying fact situations call for differing Supreme Court takes on the Establishment Clause. Think school buses and books for parochial schools. Think local exemptions from taxes and sewer connections and who is covered but may not pay for police and fire protection (practices also present in luring corporations to town). It appears that we are stuck with a case-by-case look all the way from Griswold to Hobby Lobby. It would be nice to be a purist and insist on a machete-like judicial solution to all our church and state legal woes, but the continuous church-state brawls have taken on a life of their own featured by pathetically disguised fact situations claimed to call for constitutional remedies.

    Those who have a vote and come into the fray like Gorsuch, a judge who has already demonstrated a pro-church view, are leopards in the sense that they cannot change their spots. Expect his vote in such cases, however disguised to avoid constitutional taint, to be for less separation of church and state. History records that papal blessing was necessary for Charlemagne to become emperor of the Holy Roman Empire in 800 A.D., which Voltaire later said was “neither holy, Roman nor an empire.” I think Voltaire was on to something and that Gorsuch and Pence should take a look at how lack of separation of church and state works out today, like in Iran, for instance, where the head ayatollah has veto powers over legislation. One has to wonder if we are not inch-by-inch headed the way of Iran, a scary prospect which would signal the end of our democracy (already under economic and political assault). We should take a look at history, where the mixture of church and state has never worked, and one would think the Enlightenment put an end to such nonsense, but here we are, trying to mix oil and water again. Some things by their very nature cannot mix, whatever laws legislatures pass and whatever contorted logic courts use, and I think this is one of them.

  3. This case seems to be a waste of time and money. If we are to be successful in keeping the wall of separation between church and state, we have to be smart about it and target our money and our energy where it can do the most good. Remember that we have Betsy DeVos and Mike Pence to contend with over the next 4 years. I don’t want my tax dollars paying to teach creationism in a science class.

  4. I believe the annual Easter Egg roll at the White House is held the Monday after Easter.

  5. I think Jo Ann Green is overreacting about the Easter Egg Hunt at the White House. Although it is held on Easter Sunday, there is nothing Christian about collecting eggs. If I remember correctly, this is an example (as are Christmas celebrations, about the birth of Christ) Easter was chosen to coincide with a pagan festival. If there was a many named Jesus in what is now Israel, no one knows when he was born or when or how he died. The Romans, normally good record keepers, did not acknowledge anything about him.

  6. I was watching MSNBC yesterday dealing with a segment on the recently “retired” governor of Alabama. A spokeswoman for a Christian publication (I cannot remember which one) was explaining that Evangelical Christians do not really care if their chosen politicians LIVE UP to the moral high ground that they espouse. They only care about the political decisions (Supreme Court Nominees, Anti-LGBTQ legislation, Anti-abortion legislation) that they enable. Apparently, it is too difficult to find (primarily) Republican politicians that are willing and able to live a moral life. It is much easier to forget about the “moral life” part of it and just find people with political aspirations that are willing to say what you want to hear. I find such hypocrisy the worst characteristic of American politics. From my side of the ideological aisle, I expect those that represent me to walk-the-walk. I do not expect them to be perfect. I expect them to embrace the imperfections and differences in all people. I expect them to care about the people that they represent.

  7. Pat de Caprariis. I think you would particularly enjoy a book, Zealot, by Reza Aslan about the life and times of the historical Jesus. While he does assert that Jesus as an individual person did live based upon historical research, his interpretations of and explanations for that person are fascinating.

  8. You surprised me! You certainly did not telegraph your thoughts and in the course of your explanation changed my attitude and view on the case.

  9. Wikipedia:
    “Easter eggs, also called Paschal eggs,[1] are decorated eggs that are usually used as gifts on the occasion of Easter or springtime celebration. As such, Easter eggs are common during the season of Eastertide (Easter season). The oldest tradition is to use dyed and painted chicken eggs, but a modern custom is to substitute chocolate eggs wrapped in colourful foil, or plastic eggs filled with confectionery such as chocolate. Although eggs, in general, were a traditional symbol of fertility and rebirth,[2] in Christianity, for the celebration of Eastertide, Easter eggs symbolize the empty tomb of Jesus, from which Jesus resurrected.[3][4][5] In addition, one ancient tradition was the staining of Easter eggs with the colour red “in memory of the blood of Christ, shed as at that time of his crucifixion.”[3][6] This custom of the Easter egg can be traced to early Christians of Mesopotamia, and from there it spread into Russia and Siberia through the Orthodox Churches, and later into Europe through the Catholic and Protestant Churches.[6][7][8][9] This Christian use of eggs may have been influenced by practices in “pre-dynastic period in Egypt, as well as amid the early cultures of Mesopotamia and Crete”.[10]”

    Wikipedia doesn’t mention why the “Easter Eggs” are hidden and collected; probably, as with the chocolate or filled plastic eggs, this custom is simply commercializing Easter as Christmas has become a “gimme, gimme, gimme, Santa Claus” tradition. Yes; I do know that December 25th is not actually the birthday of Jesus Christ but a way to keep his name at the forefront of Christianity. It doesn’t change the fact that the Trumps have ignored this White House tradition as they have ignored the First Lady and their child(ren) living in the White House rather than two other business/residences privately owned by the president which our tax dollars are supporting, protecting and providing transportation to and from. Trump hasn’t even tried to “frame these issues”; simply done as he pleased and billed the tax payers.

    Are there no legal procedures for the Legislature to “frame these issues” to rein in the orange one…is there no way to “frame these issues” to rein in the Legislature? The swearing in of Gorsuch provides another “god head” member of SCOTUS; assuring little chance of separation of church and state being upheld at the federal level and assuring the states can run rampant over us waving their Bibles.

  10. Greetings Rick S. Who is “you” in your question, what “thoughts” are you talking about?
    Irvin BAA 🙂

  11. There are numerous right wing law firms that go around looking for these types of cases to push through the separation of church and state wall. You can find them behind most anti-abortion cases and religious freedom rot . America has the ACLU, wingnuts have the ACLJ founded by nutter Jay Sekulow who used to be a fixture on the 700 Club with Pat -my first son was a preemie- Robertson.

  12. It seems to me that a judge, any judge, lower court to Supreme Court, art judge to beer judge, should be impartial; the presumption of impartiality is in the word itself: JUDGE. The fact that Senate confirmation hearings frame questions not to establish impartiality of the nominated judge but to determine whether he or she is partial for or against pet issues strikes me as a practice that reveals a pervasive and ugly presumption THAT NO JUDGE CAN BE OR SHOULD BE EXPECTED TO BE IMPARTIAL. Does that presumption of raw partiality permeate the entire population of the United States? Does no law school teach the discipline of IMPARTIALITY? Does the fate of our nation and the life of individual freedom derive from the assumption of PARTIALITY or from the assumption of IMPARTIALITY?
    Here is how rancid and ridiculous this situation has become. Think of NCAA Football’s centralized offsite review process to instantly review certain on-field decisions by referees. As rabidly partial as American football fans are and as many zillions of dollars as are wagered on game outcomes, the American football fans fully expect the NCAA “supreme court” (replay officials) to be impartial. And so far they are impartial. If sports nuts can be reasonable in the heat of the moment–almost perfectly reasonable–why can’t American citizens and the judicial review process we endorse be just as fair, honest and IMPARTIAL as are those sports replay officials? That is what is rancid and disgusting. The prevailing behavior seems to suggest that we “citizens” have lost the ability to be fair, lost the notion that others can be fair, and lost the confidence that the professionally fair (the judges) among us can exercise the discipline to be IMPARTIAL. That is what is rancid and disgusting. Human beings in sports outperform the rest of us in athletic endeavors, that is to be expected; but when they outperform us in citizenship tasks, that is unexpected, and it reveals something about all of us that is shameful.

  13. As a supporter of separation of church & state it can be a challenge to grasp the thinking of those who wish a more mingling of the two. I am glad you wrote this article.

  14. I’m aware of court history on approving aid to parochial schools for non-religious purposes, but I disagree with the precedent. Blaine amendments to state constitutions are generally more strict and more specific in denying aid to religious institutions which confers any benefit to them. Relieving these institutions of the cost of providing safe playgrounds is a direct financial benefit to them.

    The U.S. constitution requires neutrality on religion – not just between and among religions but also between religion and the lack of it. Using taxpayer dollars for religious institutions is not neutral. It’s putting a financial finger – and sometimes a financial cement block – on the scale for the religious institutional recipient.

    More and more taxpayers are voicing sentiments that if religious institutions want government handouts, they should also pay taxes. I understand the sentiment but would much prefer that churches and church schools keep their tax exempt status AND stop demanding government handouts.

  15. It’s very difficult to find a subject that doesn’t have at least two sides. “Impossible” might be a better word than “difficult.” The usual standbys … religion and abortions … have been prominently mentioned today. Republicans are reportedly on one side of each issue … and Democrats on the other side.

    Now that Fake President Trump is in the White House, there now seems to be a third side, and nobody knows what it is or will be. I just hope it doesn’t involve any bombs or any admirable activities by United Airways.

  16. If memory serves, ground-down tire pieces are strongly suspected (because, I suppose, of their petrochemical content) of causing cancer in a string of schools where they were used to cushion soccer playing fields. While the evidence is anecdotal, there were a sufficient number of instances reported, especially among goalies, to cause parents to withdraw their kids from playing on rubber-lined fields. This seems to me to be sufficiently logical to bear further investigation. The EPA has been on the case since February of 2016.

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