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USA: Supreme Court sides with religious institutions in a major church-state decision

Monday 26 June 2017, by siawi3

Source: https://www.washingtonpost.com/politics/courts_law/supreme-court-sides-with-religious-institutions-in-a-major-church-state-decision/2017/06/26/f6187a2a-5a13-11e7-9fc6-c7ef4bc58d13_story.html?utm_term=.5cde3fa01d81

Supreme Court sides with religious institutions in a major church-state decision

Photo: The playground at Trinity Lutheran Church in Columbia, Mo. (Annaliese Nurnberg/Missourian via AP)

By Robert Barnes

June 26 at 12:01 PM

The Supreme Court concluded its work for this session on Monday siding with religious institutions in a major church-state decision and with no indication that pivotal Justice Anthony M. Kennedy is retiring.

The speculation about Kennedy, who has served on the court for nearly three decades and is almost always the deciding vote in divisive cases on the nation’s biggest controversies, dominated the end of a relatively quiet Supreme Court term.

But the court’s announcement of final decisions came and went without any word from Kennedy, whose former clerks had speculated he was considering leaving. The rumors were closely watched at the White House, where a vacancy would give President Trump the chance to solidify a more conservative Supreme Court.

In the church-state case, the court ruled 7-2 that it violates the Constitution’s protection of the free exercise of religion to exclude churches from state programs with a secular intent — in this case, making playgrounds safer.

Missouri’s state constitution, like those in about three dozen states, forbade government from spending any public money on “any church, sect, or denomination of religion.”

Trinity Lutheran Church in Columbia, Mo., wanted to participate in a state program that reimburses the cost of rubberizing the surface of playgrounds. But the state said that was not allowed.

The exclusion has raised big questions about how to uphold the Constitution’s prohibition on government support for religion without discriminating against those who are religious.

“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,” wrote Chief Justice John G. Roberts Jr.

The church had ranked high enough in its application for the safety surface that it would have received the grant, but for the denial from the state’s natural resources department.

“The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant.

Roberts was joined by the court’s conservatives as well as one of its liberals, Justice Elena Kagan. Another liberal, Justice Stephen G. Breyer, agreed with the outcome of the case.

[Justices express sympathy with Missouri church at Supreme Court hearing]

Roberts made a concession that may have drawn some votes. In a footnote, he said “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

The two dissenting votes came from Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Sotomayor issued a stinging dissent, and made clear her displeasure by summarizing it from the bench after Roberts announced the decision.

She said the ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

She concluded: “If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

Some states with the same restriction as Missouri already allow churches to participate in programs that are generally applicable to the public and are for secular benefits such as health and safety.

Adding a twist to the case, Missouri now does as well. The state’s new Republican governor, Eric Greitens, announced just before the April oral argument that he was reversing the policy that denied Trinity’s application in 2012 and that churches are now eligible to participate.

The state’s new attorney general agrees, and a private attorney was appointed by the state to defend its old policy.

The case has been pending for a very long time. The court agreed to hear it in January 2016, just before the sudden death of Justice Antonin Scalia.

The case is Trinity Lutheran Church of Columbia v. Comer.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.