Viewpoint: Church Claim for State Funding Could Open Door to Government Regulation

A number of religious organizations have filed amicus briefs in support of a church that is suing the state of Missouri for discrimination when churches are categorically denied funding under the state constitution, but at the same time want to reserve the right to discriminate against groups and individuals when it comes to the use of state-funded church-based infrastructure. Trinity Lutheran Church v. Pauley is ostensibly only about the availability of direct funding for a church playground, but could it open the door to state regulation of the funded infrastructure in the future?

In January, the U.S. Supreme Court agreed to hear a case of whether the state of Missouri can be compelled to pay to resurface a church playground with recycled material under an otherwise neutral and secular aid program when such funding to churches is barred by the state constitution.

When the court first decided to hear the case of Trinity Lutheran Church of Columbia, Inc. v. Pauley, Justice Antonin Scalia was still on the bench, and it seemed that the court would be poised to overturn the lower court rulings, which had found that Missouri’s “no-aid” clause (also known as the Blaine Amendment) prohibited the funding on grounds that the clause is inherently discriminatory.

Advocates for the church argue that Missouri is discriminating against religious institutions by categorically prohibiting the funding to religious organizations and that state aid does not violate the Establishment Clause because the funding program, according to the World Vision brief, is “neutral and evenhanded.” The Union of Orthodox Jewish Congregations of America argues that blanket prohibitions of government aid “expose religious institutions to significant health, safety and security dangers,” while others argue that emergency assistance such as police and fire services are always available and that infrastructure repair is a separate matter.

Several states, including Nevada, Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Michigan, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wisconsin, also have joined in a single amicus brief, claiming that state aid to churches should be constitutional. All of these states also have Blaine Amendments and further argue that the Blaine Amendment punishes churches by depriving them of a “civil right” to state funding.

Churches Claim State Discriminates Against Them in Denying Funding, but Churches Still Want Right to Discriminate in Use of These Funds

Churches that argue for equal protection when it comes to compelling state funding of their institutions, and claim that they should be on equal footing when it comes to similar secular civic organizations, should recognize that civic organizations are also held to a higher standard when it comes to discrimination claims. Churches that receive funding and simultaneously seek to reserve the right to discriminate should expect that they will be held to the same nondiscrimination standards as other civic organizations as a condition of receiving such funding and that they will need to take “equal protection” into account when it comes to people and other organizations that seek to access and use churches’ state-funded infrastructure.

Thus far, there have not been many cases on point, and where they exist it has been because the religious facility was advertised as generally open to the public, but the church later denied access on the basis of sexual orientation, or where a church institution that discriminated against biracial couples wanted to maintain their tax-exempt status.

Those arguing on behalf of the churches also have been known to argue that laws prohibiting discrimination do not affect churches because of the separation of church and state, and if, better said as when, these churches face litigation over neutral access to their facilities, they will likely argue that church–state separation prohibits the government from telling them what they can do with their own property. But the briefs, as they currently stand, are arguing for a strict formal equality between funding to churches and secular interests, which is a position they will have to abandon should the equality argument be used against them in the future.

Churches are arguing for a strict formal equality between funding to churches and secular interests, which is a position they will have to abandon should the equality argument be used against them in the future.

Until relatively recently, it was a given that state-level no-funding Blaine Amendments, found in about half the states, duplicated the Establishment Clause (via the 14th Amendment) in prohibiting state funding of religion, but now that Blaine Amendments are being attacked on their own merits, I believe we are seeing a chipping away of the principle of church independence from the state in which the Establishment Clause was forged.

Churches Argue: Get the Money Now – Worry about Regulation Later

At this stage, a clear but thin line is separating struggling churches from state funds, and most denominations will likely support Trinity Lutheran Church in its quest to compel state funding. Most churches are satisfied to defer the inevitable issue of “exemption from state regulation” to a future case. Indeed, my own denomination, the Seventh-day Adventist Church, has joined an amicus brief on behalf of the petitioners, arguing that the Missouri Blaine Amendment discriminates against churches and that the state should be compelled to fund them if they apply for neutral state-aid programs. In the event that the state is ultimately compelled to provide the funding and somebody sues the churches claiming that the churches denied them access due to their protected class (i.e. sexual orientation, religion, etc.), the churches would likely claim the right to discriminate in the way that they use the state funds.

Even if it were possible that religious exemptions from non-discrimination laws would rise and fall regardless of who wins this case, what is undisputable is that the petitioners and their amici in Trinity Lutheran Church are arguing that the wall of church–state separation must be weakened to benefit churches.

What is undisputable is that the petitioners and their amici are arguing that the wall of church–state separation must be weakened to benefit churches.

State money does not come without regulation. As the prominent Baptist minister John Leland observed in 1804, “The fondness of magistrates to foster Christianity has done it more harm than all the persecutions ever did. Persecution, like a lion, tears the saints to death but leaves Christianity pure: state establishment of religion, like a bear, hugs the saints but corrupts Christianity, and reduces it to a level with state policy.”

Sometimes it is better to leave the money on the table and walk away.

Michael Peabody, Esq. is editor of ReligiousLiberty.TV, an Adventist jurisprudence website celebrating freedom of conscience.

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This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/7462
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Thanks Michael!

I really appreciate this article and your concerns. Undoubtedly, these concerns are real.

We wish for society to understand that the church should be given special treatment to act according to its conscience, The church in turn has an obligation to act differently in its claims on the state.

If the church does not fulfil this obligation, then surely the nature of the church is currupted, and reduced to the same level as state policy, as John Leland so aptly observed. This is how money corrupts so absolutely.

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Is there a distinction made between a church building used for congregational worship and other church-owned elementary schools through college? Or, is this particular case relevant only to buildings used exclusively as houses of worship?

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I was having difficulty defining HOW the playground is used.
It is ONLY for the children of Trinity when church is open on Sunday?
Is it open to ALL children in the local community? And is it open during the week any hours?
The SDA church I belong to has a playground connected to the church school located on the other side of the church parking lot. I have seen local kids playing basketball inside the fenced in area afternoons 7 days a week [including Sabbath afternoons after everyone is gone]. So there is no discrimination except for bicycles and skates and skateboards.
A community church which helps to sponsor our Tutoring Program on Tuesday afternoons provides us space at a Community Building built on their property by Habitat for Humanity funding. There is also a nice playground across the parking lot put in by Habitat. But it is open 5 days a week mid-morning till Sunset for community kids.
The SDA church does not discriminate on playground use when church and school is closed.
Nor does Southside Community church on theirs when the playground is open.
Would the Lutheran playground be the same?

I don’t think churches should become entangled with state funding of any kind, PERIOD. It is the camels nose in the tent.
As the old saying goes “His bread I eat, his song I must sing.” Government aid comes with strings attached. Only a fool would believe otherwise. Some religionists want their cake and eat it too.

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my initial reaction is that our church is wrong on this one…it is true that church members are tax-paying citizens and individually entitled to the provisions of the state when it comes to neutral state-aid programs…but churches are generally 501©3 tax-exempt entities that aren’t paying into the tax pool which pays for these provisions…to me, the issue isn’t whether churches have the right to apply their beliefs even when it results in discrimination against non-believers or believers who don’t toe their line…the issue is whether churches who don’t pay into the state’s tax pool have a right to the benefits of that tax pool…i don’t think they do…their tax-exempt status is already a form of state aid, and it is the case that their infrastructure needs can be paid for through donations from their members, who are entitled to write off those donations against their individual taxable incomes…

i know that churches tend to justify their tax-exempt status by pointing to the numerous spin-off benefits to society from thriving churches, including rising property values, a reduction in crime fighting costs, and an increase in personal initiative in citizens, etc…but if there is an ultimate financial equilibrium stemming from this arrangement, it is off-set by the fact that nonbelievers’ taxes are being asked to fund something which they may not have access to…religious freedom rights cannot be a one way street…they have to be balanced by freedom from religion rights, as well…

of course, from a strategic standpoint, it is probably in our church’s interest to pursue anything it can get, regardless of any underlying moral equation…the civil rights arena may very well be an open market place in which those who squeal the loudest and work the most assiduously do come out ahead…

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I share Michael’s concern about churches holding out their hands for state money.

The First Amendment not only guarantees freedom of religion, it forbids the establishment of religion. At its core, the establishment clause (which has its Missouri analog in the Blaine Amendment) is not about creches on the lawn of city hall or Ten Commandment sculptures in the court house. It is about forbidding the government to use compulsorily collected tax dollars to support a religious denomination. Several of the colonies had established churches, following the European model, in which tax money was used to pay the salaries of the clergy of the state church.

The establishment clause embodies the wisdom of founders like Thomas Jefferson, who believed that it was wrong to compel a citizen to support a religious establishment that he might not even believe in. The founders’ wisdom has been amply proven by the fact that religion in American has been far healthier and more dynamic, being forced to rely upon voluntary contributions, than any of the state churches in Europe. The establishment clause is a protection against corruption and complacency, and has therefore been a tremendous blessing to our non-established churches. To understand how establishment is deadly for the established church itself, just look at the pitiful condition of the Anglican Church in England or the established Lutheran Church in Sweden.

Given these basic facts of American and world history, it is truly depressing that the SDA Church has come down on the wrong side of this issue. Our religious liberty establishment has utterly lost its bearings.

It is worth noting, however, that the non-establishment model only works in a country that has limited government and reasonably low taxes, so that people can support their own denominations out of discretionary funds left to them after taxes. You cannot have American-style freedom and non-establishment of religion with European socialism and confiscatory rates of taxation. In that model, the government takes almost all discretionary income and puts it into a common fund to be doled out according to priorities established in the legislature. In that system, obviously the church, if it is to exist at all, must be entitled to its share of the common funds.

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The borrower is servant to the lender. Prov. 22:7. The government has the right to dictate how taxpayer money is used. Any church which is foolish enough to accept government handouts, must expect that there will be stipulations and limitations on how it is used.

But I see a difference in handouts to institutions, and grants to students, who are private citizens and eligible for government benefits just like anyone else. The grant should be independent of where the student goes to school. But a grant to a church school is directly benefiting a church, and is unconstitutional, unless one thinks like Ted Cruz and his dominionist friends.

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I read most of the briefs on behalf of the petitioner last night. The briefs on behalf of the respondent have not yet been filed. The first thing I look for in a US Supreme Court religious liberty case is the brief written by Doug Laycock. He is highly respected by Supreme Court justices. He is working a companion case, so he submitted an amicus brief. My leaning is that the Court should abstain and let the state courts get first crack at interpreting the state’s Blaine Amendment. The facts are great for Trinity Lutheran. Because the Court is not necessarily faced with a facial challenge to the Blaine Amendment but only the Blaine Amendment’s application to the particular facts of the case, the Court might choose to decide the case on the merits.

It is convoluted to argue that we should suffer real deprivation of religious freedom in order to avoid suffering an imaginary deprivation of religious freedom in the future. But this argument has historically appealed to anxiety-stricken, slippery-slope reasoning Seventh-day Adventists who do not understand the path of the law. What shapes law is experience, the facts on the ground, not logic, precedent, or the way a particular legal standard is phrased. A rigid refusal to receive government services and aid is not practical; we are not about to switch out police and fire protection in favor of private and costly alternatives. But Michael Peabody’s concerns should be factored in the Court’s calculus, as I expect they will be.

I agree, and this is why I oppose efforts to disqualify a student using Cal Grants at a college that does not sign on to anti discrimination laws that undermine the faith of those institutions. AB 1888 here in California if passed by the legislature and signed by the governor would preclude a student from using Cal Grants at our SDA colleges as policy now stands at our colleges.