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Dana Milbank: The Supreme Court jumps into a playground fight over a phony war on religion

First Published      Last Updated Apr 20 2017 06:12 am

WASHINGTON • Before he joined the Supreme Court a decade ago, John Roberts proclaimed what he called "the cardinal rule of judicial restraint: If it is not necessary to decide more, it is necessary not to decide more."

But as he heard arguments Wednesday in this term's much anticipated church-state case, the chief justice seemed to be practicing a different rule from the one he preached: More is more.

Restraint was in short supply during oral arguments in the Trinity Lutheran Church case at the high court. It was a manufactured controversy, cooked up by conservative interest groups that are hoping to chip away at constitutional provisions in 39 states restricting taxpayer money from going to churches. In this case, it wasn't only unnecessary to decide more — it was unnecessary to decide it at all.




It wasn't a big deal to start with: A preschool in Missouri had applied for a state grant in 2012 to repave its playground with flooring made from old tires. The state rated the application highly but denied the grant because the school was run by a church. The church sued.

The complaint became irrelevant last week when the state's new governor, Eric Greitens, reversed Missouri's position and said he would allow religious organizations to compete for such grants. The lawyer hired by the state, James Layton, suddenly found himself arguing the position opposite of those who hired him.

The case would seem to meet the dictionary definition of moot, as in, "deprived of practical significance." Some justices thought so.

"Why isn't the case moot?" Stephen Breyer asked, adding that the governor "said he's going to give you the grants."

Sonia Sotomayor asked Layton: If representatives of the state "are not willing to fight this case, are they manufacturing adversity by appointing you?"

The short answer: Yes.

In front of the Supreme Court on Wednesday, Concerned Women for America, a conservative group, was displaying balloons and signs proclaiming "Every Child's Safety Matters." Said Annette Kiehne, the Trinity Lutheran preschool director, "This is about keeping our kids safe, wherever they play."

But it really wasn't about that. It was about interest groups whose business model depends on perpetuating the culture wars trying to frighten people into thinking Christianity is under siege. It was a springtime version of the annual "war on Christmas."

Michael Farris, CEO of the Alliance Defending Freedom, which represented Trinity in the case, was fairly straightforward about his motives, telling reporters in the plaza that "there's a broad concern among religious people in this country that we're becoming second-class citizens."

But if this supposed assault on Christianity is real, it has been going on for a long time. Opponents of the church-state language in state constitutions correctly say that these "Blaine Amendments" were shaped by anti-Catholic bigotry in the late 19th century. But their roots go back to the founding. Layton told the justices that Missouri in 1820 adopted language based on Thomas Jefferson's 1786 Virginia Statute for Religious Freedom, which said that "no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever."

What has changed now? Nothing — except the rise of interest groups (on both sides) that justify their existence and boost their fundraising with such controversies. The goal this time: to roll back restrictions on public money going to churches. An article in the conservative National Review argued that "a victory for Trinity Lutheran would fundamentally alter the landscape of school choice."

Arguing for Trinity, David Cortman offered reasons the justices need to rule even though there isn't an actual dispute in this case: The governor could change his mind, or state courts could knock down the governor's new policy. Eventually, though, he admitted that "why we're here in the first place is the Missouri state constitutional provision" — the one saying no public money may be used "in aid of any church."

So that's what it's about: Invalidating dozens of state constitutional provisions keeping public money out of churches. "There are 39 states with constitutional amendments like the one Missouri has. That's a history," Sotomayor said. "And the essence of that history is, basically, we don't want … the vast majority of states to fund houses of worship."

Justice Samuel Alito, in retort to Sotomayor, disputed the idea that the Missouri amendment "reflects an admirable historical tradition that should be respected."

No, anti-Catholicism wasn't admirable, but the American tradition that the government doesn't give cash to churches is venerable. A restrained judiciary wouldn't upend that tradition because of a manufactured conflict over a playground.

Twitter, @Milbank

 

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