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.
The program does not extend to religious non-profits, because Missouri (and a whole bunch of states) have rules that state funds can’t go to religious institutions. Trinity Lutheran applied for the program, but was denied funds.
Trinity Lutheran sued, arguing free exercise of religion under the First Amendment and equal protection under the Fourteenth Amendment. Federal courts ruled for the state and against the school.
You see the problem here: Trinity Lutheran believes it is being denied funding because of its religious affiliation. Missouri believes redirecting state funds towards a religious institution would be subsidizing religion in the state.
So far, a “fair and balanced” (sorry!) description of the case. But the author then goes on to say that no one believes Neil Gorsuch will give the State of Missouri a “fair shake.”
Trinity Lutheran is exactly the kind of case that justifies, in the mind of a Republican, refusing to give Merrick Garland a hearing, and destroying the filibuster to install Gorsuch on the Court. This case represents a wealth transfer from state coffers to religious institutions. It’s exactly the kind of thing cultural conservatives get up for.
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….)