I just got done reading the transcript of the oral arguments [PDF] before the Supremes in the case of Trinity Lutheran Church v. Comer. Ginsberg can flying out of the chute citing Everson (1947):
... this Court said in no uncertain terms what the Framers didn't want was tax money imposed to pay for building or maintaining churches or church property.That sounds like something Clarence Thomas might say. I was thinking that this was going to be a "why are we even here" moment and Roberts would invite everyone to head up to the ball court to shoot some hoops.
There wasn't a whole lot of parsing or twisting in the questions asked of David Cortman, Esq., representing Trinity Lutheran, but a little on how not being able to take advantage of the ground tire program would be a great threat to the practice and fate of the free exercise Lutheranism in the Show Me State.
James Layton, Esq., however, did not get of so lightly. Many of the Supremes seemed to be unwilling or unable to distinguish between general public benefits which might incidentally accrue to a church, or any other organization or individual, like fire protection and law enforcement, on the one hand, and limited benefits in the form of direct cash payments or other material nature distributed by the state on the other. Breyer came up with this hypothetical "State X" which seemed to get Layton wondering WTF this was all going:
Breyer: I mean, we imagine a State, State X. And State X says, we're not going to provide police protection. We will for everybody, but not a church. And by the way, that costs us extra money. We have to hire extra policemen -- revoke. Okay That's all. Why not?Layton only manages a "That..." before Breyer continues:
We don't want -- we don't -- we don't want to because they're a church. That's why not. Same with fire protection. Same with vaccination programs. Same with public health. Same with with helping children who get sick at school. Okay? But as soon as you answer that, I'll be able to know that ask you a question and how does this differ. Okay?Again, Layton only gets out a "Well... this differs..." before yet another Breyer smackdown for not being able to understand a question as simple as "Okay?":
No, I'm not asking that yet.This appears to have prompted some laughter. Breyer gets some more when he clarifies and asks if Layton thinks these would be constitutional, and Layton wisely declines to take a position. I say wisely, because this is all nonsense. You don't vaccinate churches, you vaccinate individuals. If you didn't vaccinate a Lutheran because they're Lutheran, well, that doesn't fly. The benefit of fire and police protection do not accrue exclusively to a church -- they accrue more generally to the community and perhaps individuals case by case (stopping an assault of a church member on church grounds). A direct cash benefit to improve the church grounds is something completely different, even if the general public might enjoy some benefit as a result, as would have possibly been the case in the improvement of the playground at Trinity Lutheran Church.
Now, a I've said before, just because a law is constitutional, as in my opinion Blaine amendments are in general and Missouri's in particular, I don't mean that they are necessarily a good idea. I don't think they should be struck down just because a Supreme Court justice cannot summon the analytical power to resolve the difference between fire protection and a cash payment. No, if this one gets struck down it's because they just want to.
Then get ready to hold your hats because it's going to be Katy, bar the door.
protect public schools by preventing funds being diverted to religious institutions. Striking them down out of hand will put extreme pressure on the public school systems, especially distressed ones, and the outcome is difficult to seem, but I'm confident there will be significant thrash. Now, I'm all for experimentation in education and skeptical of top-down approaches to it. And maybe widespread creative destruction is what we need. But I think prudence would dictate that Blaine amendments and related laws should be restricted and clarified depending on the requirements of the individual states, and let them figure it out, rather than just toss them out because a few Supremes just don't like them.