Trinity Lutheran v. Comer, revisited

So this is a long post, my apologies, but the subject is as dense with meaning as it is fraught with bad intentions.
In a thread at another channel about the meaning of the "separation of church and state" I noticed that the Trinity case was mentioned several times, and with a variety of claims about the nature of the decision involved there. What I found might surprise some, theist and atheist alike.
To understand the decision, however, one must understand the religious clauses of the First Amendment. As I've discussed this elsewhere I'll try to keep it brief, here:
1) The phrase "wall of separation" originated not in the writings of Thomas Jefferson, but in those of Roger Williams. Williams was persecuted for his Christianity by other Christians, ultimately being forced to flee Salem or be imprisoned. Imprisoned, that is, for what he thought, and as a consequence of what he said. Williams wrote of the need for secularism by distinguishing between the worlds of the minister and of the magistrate.

2) Jefferson, inspired by Williams as well as by Locke, articulated a precursor to the First Amendment in the Virginia Statute of Religious Freedom, in which he demonstrated the logic of religious liberty by pointing out that not only was taxation for the support of churches we don't agree with a violation of our personal religious liberty, so too is doing so for the support of churches we do agree with.

3) James Madison, in his Memorial and Remonstrance Against Religious Assessmentsprevented a state bill to collect taxes for the purposes of supporting clergy from passing, on much the same bases as his mentor, Jefferson. Madison illustrated the logic of religious liberty more succinctly than Jefferson, however, by pointing out that any concession for one must be an imposition on another. This tract was a significant contributor to the success of the passage of the First Amendment, which Madison also wrote.

4) All shared the conviction that religious liberty is an unalienable right invested in us in equal proportion by our shared origins in a common "Creator", and that they were as important, but no more important, than any of our other rights, and no one person's right to religious freedom was any more important than another's.

5) Jefferson exemplified in his Letter to the Baptists at Danbury the logic all shared regarding religious exercise, which was that its realm was confined to that of an individual's relationship to god, and that "acts" - that is, an individual's relationship to other individuals - was rightly a civil matter. Williams described these as the realms of the minister and magistrate, and all agreed that neither was to impose on the other.
Now consider that two of the first three major contributions to the First Amendment and American secularism were responses, at least in part, to proposals of taxation in support of the clergy. To those most responsible for our inheritance of religious liberty, and indeed the very writer of the First Amendment, taking money from citizens to give to the church was an explicit violation of that liberty. Williams and Jefferson were clear in their writings that religious liberty could not exempt one from one's civil responsibilities, since to do so would be what Madison described as imposing on others to satisfy the one. Thus tax exemptions for religious institutions is by definition a violation of religious liberty.
Now consider the core logic of Justice Roberts' decision in Trinity:
The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status” he wrote, in reference to the Lukumi v. Hialeah decision. He goes on to reference Everson v. Board of Education:
In the course of ruling that the Establishment Clause allowed New Jersey to extend that public benefit to all its citizens regardless of their religious belief, we explained that a State “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”
What Justice Roberts fails to mention is the passage in the Everson decision in which Justice Black rather flatly states
The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
Which, you might agree, is a rather odd decision to cite in support of Roberts' own decision explicitly demanding that the State must levy taxes in order to support churches. But Justice Roberts goes on to explain his decision in light of a previous SCOTUS case, Locke v. Davey, in which the state of Washington had made grants for tuition on the condition that such grant money would not be used for a "devotional degree". Davey, the student, sued on the basis of being denied his right of exercise, and lost the case. The difference between that losing suit and the winning suit brought by Trinity Lutheran was described thus:
Davey was not denied a scholarship because of who he was; he was denied a scholarship be- cause of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.
The emphasis is in the original, and by it Roberts marks a distinction between beingreligious and acting religious. You will note this comports with Jefferson's description, as well.
In part the failure of Davey's case is that the state would not discriminate between secular and religious classes, only between secular and religious degrees - at least according to Roberts, for this is what marks the difference in his decision between being and acting. It seems something of an oddity, however, that a case should be cited for precedent on the basis of a tertiary quality of a state law ( the distinction between mere classes and a degree ). That's a weak connection to the core issue of religious exercise, made weaker still by the Justice's failure to recognize that while there are secular religious classes ( which Jefferson supported ), there are also devotional classes which are not degree seeking. Thus the presumed connection between being and acting does not and cannot depend on any criterion so simplistic as degree seeking. Here I note for future reference that Trinity Lutheran offers "spiritual" guidance to its students and the children at the daycare.
As weak as this distinction is, however, Justice Roberts's distinction in the case of Trinityverges on the feeble:
The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id., at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.
Trinity Lutheran is a church which offers schooling and daycare for community members of any faith, and describes its own services developing children's spirituality through daily religious activities, and offers a curriculum guided by the Lutheran Church which intends that "children may be equipped as disciples of Jesus Christ." The curriculum guide offered by the church states its mission is to
to provide a solid, Christian education developed with standards that drive instruction so that every child can be reached with an effective education – one that centers on the LCMS faith. The Common Core State Standards may be considered a tool that would allow LCMS schools to more fully prepare its students for service and witness to Christ and the world.
It is Justice Roberts' opinion that educating children to "better service and witness to Christ" has nothing whatever to do with his distinction of acting rather than being, or with the Davey case's distinction between secular and devotional.
Now there are those who maintain, despite any logical arguments or accounting practices to the contrary, that paying for a playground resurfacing is not the same as contributing to the church's religious mission. As it happens, however, Trinity Lutheran disagrees:
In its application, the Center disclosed its status as a ministry of Trinity Lutheran Church and specified that the Center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.”
In other words, the church has explicitly tied its mission to offer devotional education to children to the playground by its improvement in the safety of the school, which is intended to make the school more attractive to parents.
For all this, the ultimate rationale for the Trinity ruling rests on Roberts's comparison of the Locke v. Davey case in Washington:
Washington’s selective funding program was not comparable to the free exercise violations found in the “Lukumi line of cases,” including those striking down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” Id., at 720– 721. At the outset, then, the Court made clear that Locke was not like the case now before us.

Washington’s restriction on the use of its scholarship funds was different. According to the Court, the State had “merely chosen not to fund a distinct category of instruction.” Id., at 721. Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.
Justice Roberts's decision here runs to roughly 4600 words. Of those, less than 300 are employed to describe Trinity Lutheran, and of those few, none are used to describe its self-avowed mission, which is to "prepare its students for service and witness to Christ and the world." Instead, there are two statements regarding the devotional character of Trinity Lutheran. The first was simply to assert that public funds were denied Trinity solely because it is a church. The second offers a rudimentary rationale, and reads in its entirety:
The Court in Locke also stated that Washington’s choice was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could “think of few areas in which a State’s antiestablishment interests come more into play.” Id., at 722. The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id., at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.
This passage offers the only justification for Roberts's decision. It is 118 words long. The vast bulk of the remaining 4500 words are dedicated to establishing the Court's rationale, which is founded in this supposed distinction between being and acting. That, and another component which is just as necessary, but much less argued - in fact, argued not at all. Consider the final decision of the Court:
The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.
Given the density of language inherent in a Court's decision, this paragraph might seem relatively straightforward. It isn't. There is a claim being made about the rights of American citizens, which is no more justified than it is clearly identified by Justice Roberts. This claim is mentioned only five times throughout Roberts's decision, and yet without it the decision cannot stand. Most of you will already appreciate the point, which is that Roberts is affording the church itself the right to religious exercise.
As he had done in the Citizens United case, Roberts adduces right to legal entities such as businesses or organizations under the controversial and long disputed concept of "corporate personhood." Here the right of religious exercise is afforded the church, its school and daycare and, in the end, its playground. You might notice something odd about that, inasmuch as neither the church, nor the school, nor the daycare nor even the playground are capable of any religious exercise whatever. They cannot, in fact, act.
It is solely this fact, manufactured by Roberts with little more than a wink and a nod, which connects his rationale for the decision to his justification. A church cannot act, thus to deny it funds is by definition a violation of the First Amendment's exercise - if, and only if, a church is capable of having the right to religious exercise, to act in a religious way.
Here is the ugly heart of contemporary American jurisprudence at the highest levels. The Supreme Court has offered Americans a means by which the rights of citizens can be extended to their properties, and these properties can then impose their rights on citizens. In the case of Trinity v. Comer, this dilution of our inalienable rights is borne of an argument so tedious, so tendentious, so free of critical engagement, and in the end so dependent on outright incoherency, that I for one can find no other way to see it as but a very serious, very consequential joke. A joke on the Constitution, and at our expense.

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