The right wall of separation: When Blaine Amendments go too far

  • The right wall of separation: When Blaine Amendments go too far

The right wall of separation: When Blaine Amendments go too far

Gorsuch's confirmation wasn't the only late-breaking event, however. Layton replied that this would be another example of a universal benefit, so the state's concerns about entanglement with a church would not be valid. Idaho has a version of the Blaine Amendment in the Constitution.

The US Constitution prevents the government from prohibiting the free exercise of religion, Layton said. This appears to be an attempt to circumvent the state's long-established constitutional position and the First Amendment. But when state bureaucrats noticed Trinity Lutheran was a religious organization, it tossed out the church's application, saying separation of church and state means no state money can go for anything to do with religious groups.

"How does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera", the justice asked.

Chief Justice John Roberts, meanwhile, wanted to know if a state program that gives school groups tours of the state capitol could discriminate against religious schools. Trinity Lutheran sought the funds despite regulations barring state grants to religious institutions.

The dispute pits two provisions of the U.S. Constitution's First Amendment against each other: the guarantee of the free exercise of religion and the Establishment Clause, which requires the separation of church and state.

The justices posed a stream of hypothetical questions to both sides that were aimed at finding the right line between the improper mixing of government and religion on the one hand and discrimination against religious institution on the other.

Justice Samuel Alito asked if federal programs would violate Missouri's constitution by providing homeland security grants to church facilities that might be vulnerable to terror attacks. The Supreme Court has upheld similar funding prohibitions in the past, but here the church insists that its school was denied funding exclusively on account of its religious status - and that the funds it sought for tire scraps should've been granted because they wouldn't be used for religious instruction.

The alliance claims that 14 other Missouri 501 (c)(3) non-profits were awarded the grant for their playgrounds and that Trinity Lutheran, also a 501 (c)(3) non-profit institution and otherwise qualified for the grant, was unfairly excluded from the program.

There was no sign that the court's conservatives would side with the state.

PFAW Foundation joined an amicus brief authored by the ACLU pointing out the serious defects in Trinity's legal argument.

A proposal to tweak Idaho's amendment stalled in a House committee.

In a separate post, Howe explains an unexpected twist in Trinity Lutheran Church v. Comer.

Justice Gorsuch could have an enormous effect on this case.

Even the justices themselves may have been expecting Justice Scalia's replacement to be the fifth vote in a 5-4 decision. It therefore seems that Trinity Lutheran might not be the divisive blockbuster many of us anticipated. But, the governor's press release emphasized, the new policy did not affect the church's case, which is slated for oral argument tomorrow.

That raised a question for the Court about whether the case was still active- and today's hearing is likely to begin with that issue.

Elena Kagan, a far-left advocate who was appointed by Barack Obama, said, "This is a clear burden on a constitutional right", pointing out that for such a restriction to survive, the state's interest must be "extremely high".

But it also could bolster the case for using public money for vouchers to help pay for children to attend religious schools rather than public schools in "school choice" programs backed by many conservatives.

Trinity Lutheran Church Learning Center in Columbia, Missouri, applied for a state tire chip grant in 2012 in hopes of making its playground safer for students and neighborhood kids who use it. Justice Sonia Sotomayor echoed this point when she said that "we seem to be confusing money with religious practice".

That amounts to "an undeniable hostility to religion", Cortman said. I am sure that the DNR would have come to the same conclusion if the application came from a Muslim or Jewish preschool that includes the teaching of religious principles as part of the curriculum.