April 19, 2017


THE CONSERVATIVE AGENDA FOR GORSUCH'S FIRST WEEK (Jeffrey Toobin,  April 18, 2017, The New Yorker)

Neil Gorsuch takes his seat on the Supreme Court this week and will immediately have a chance to make his mark with a case that involves one of the top priorities for the conservative movement: lowering the barriers between church and state. The issue has long been a priority for conservatives, on the Court and elsewhere. But the complexion of the controversy has changed in recent years, as those on the right have become more aggressive in pressing constitutional arguments. At one point, the issues in this area were fairly straightforward, if largely symbolic. Could a Christmas crèche be displayed on municipal property? (Yes, as long as there are, say, plastic reindeer as well as the baby Jesus.) Can a student deliver a prayer before a high-school football game? (Yes, in the stands, but not over the public-address system.)

The current cases before the Supreme Court are more consequential because they concern government policy and, more often, government money. In some of the cases, religious individuals seek to be excused from obligations that the law imposes on the rest of society; in other cases, including Trinity Lutheran v. Comer, the one to be argued this week, religious institutions seek government money, notwithstanding the Constitution's prohibition on the establishment of a state religion.

The facts of Trinity Lutheran v. Comer are simple. A Missouri law provides grants for nonprofit organizations to purchase rubber playground surfaces. Trinity Lutheran Church, which operates a preschool on church property, applied for a grant through the program but was rejected under a provision in the state constitution that prohibits state money from going "directly or indirectly, in aid of any church, sect, or denomination of religion." The church sued, claiming that the law violates the First Amendment guarantee of the free exercise of religion.

The problem for the Left on Church-State questions is that they are trying to defend an extra-textyual standard--Separation--when the Constitutional one is only no Establishment.

Posted by at April 19, 2017 8:17 AM