No one is saying his dissent has force of law but it points to a path Gorsuch and the other four conservative justices could use when this case is decided.
How the state decides to hand out benefits absolutely matters. A benefit given only to white people is not “hindering” minorities but I am willing to bet it’d be hard to defend in court.
@Human Action:
Actively hostile or actively disengaged? The state constitution obviously doesn’t want any intermingling of government funds with church funds.
Right, the state constitution is clear, and that part may or may not pass US Constitutional muster.
I was addressing, in my non-lawyerly way, the idea that the US Constitution’s Establishment Clause forbade the church from getting the playground grant. Echoing the dissent in Locke, I would argue that denying a generally-available benefit is hostility, not disengagement.
One would need to apply this to all non-profits, otherwise by definition the government would be considering religion.
A secular non-profit that is exempt from tax but a religious one that isn’t runs afoul of the free exercise clause.
Regards,
Shodan
I’m for that result, but I would do it by eliminating the non-profit tax structure all together. Much more elegant that way.
Definitely agreed–when I say “no automatic exemption,” I mean that they could still apply for tax-exemption under some other regulation, e.g., charitable work. (That said, I hate the fact that fraternities and country clubs and other social organizations have tax-exempt status and believe such status should be reserved for truly charitable organizations).
Thus a church group that wants to set up a soup kitchen run by Methodist precepts is free to do so and apply for tax-exempt status for that kitchen. A prosperity gospel church that exists mainly to enrich the pastor would be out of luck.
Out of curiosity, what about a preschool and daycare operated as a nonprofit but which teaches a Christian world view and incorporates daily religious instruction in its programs?
Indoctrination is a tricky issue (and I’m not using “indoctrination” as a pejorative, rather in its technical sense). My preference in this regard is definitely out of the mainstream for the US (and more in the mainstream for various European governments): while students might attend religious schooling, it should be in addition to secular schooling, not instead of. If a school wants to teach to state standards, I’m good with their certification as a nonprofit. If they want to teach something significantly different, they should not be allowed to function as the primary schooling for kids, should instead be an extra-curricular activity.
That said, I know this is politically unfeasible, so if we’re talking about something remotely feasible, I’d just say that as long as the school meets baseline standards for non-public-school education, they should be treated like any other school that meets those baseline standards. This would be accurate scientific pedagogy, though: schools that refuse to educate kids about natural selection would no more be eligible than schools that refuse to teach kids about addition or capital letters or the constitution.
I’m not seeing your argument here. How does a blanket prohibition on giving any religious organization public money violate a Constitutional prohibition against establishing a religion? While it might go too far in the opposite direction, I don’t see how there can be a claim that not giving a church money is somehow favoring that church. And a prohibition that applies to all religious groups isn’t picking and choosing from among religious groups.
I disagree. I feel it would be quite a stretch.
The government has three possibilities when it comes to disbursing public money: it can give all the money to everybody; it can give no money to anybody; or if can give varying amounts of money to different people.
The first and second policies treat everybody the same; every one either gets all the money or none of the money. But the first policy, of course, is impossible as there isn’t an infinite supply of money to be given. The third policy has the government making choices over who gets money and who doesn’t and the differing amounts of money people get. Missouri, in this case, decided to adopt the absolutely unbiased second policy towards religion rather than attempting to develop an acceptably biased third policy.
If your argument is that the policy is biased against religion because it is implemented against all religions, I would still disagree. The Establishment Clause prohibits the government from favoring one religion over another religion or favoring religion over non-religion; it doesn’t require government to show support for religion.
The Establishment Clause’s twin brother, the Free Exercise Clause does prohibit the government from disfavoring a religion. In theory, you can argue that the Missouri Constitution does this by prohibiting religious organizations from receiving funds that might be given to non-religious organizations. This would be disfavoring religion over non-religion.
But I don’t think that argument would stand up here. Religions have survived without public funding so arguing that denying them funding is preventing the free exercise of religion doesn’t hold up. Denying them funding isn’t helping them but it’s not harming them either.
On an unrelated note, I’m glad you’re back.
Couldn’t you make the same argument in regard to something like same sex marriage?
Gay people survived without marriage so arguing that denying them the right to marry is harming them doesn’t hold up.
Did you read or think about your statement before posting? Employment discrimination, insurance discrimination, denial of housing, health care choice restrictions, inheritance laws. Seems a great deal of harm.
Sure.
Did you?
I wonder if churches already have access to this grant: all they have to do is to organize themselves either as a non-tax-exempt organization, or as a 501©(3) based on educational or charitable criteria rather than religious. If they did so, would everyone agree they should have access to this grant?
It’s not like gay couples at all, who have no way of organizing to obtain the benefits of marriage. Churches who are denied access to this grant are denied such because they’re choosing to take advantage of favorable tax laws. These folks want to have their cake and eat it too: they want the tax exemption of being religious, and the access to grants of being nonreligious.
I’m happy for them to choose either (under current law; I’d prefer churches not have tax exemption for those parts of their mission not related to charity), but not to choose both.
No, you could not. The state of Missouri is not forbidding churches from building playgrounds; it’s just saying the state won’t pay for those playgrounds. Denial of government funding is not the same as prohibiting something.
Nobody is suggesting the government should fund weddings, gay or straight, so that’s a non-issue. What opponents of same-sex marriage are trying to do is get the government to prohibit such marriages.
Religions have survived without public funding, as you said. And gay people have survived without marriage.
Little Nemo: the correct test for harm is not “did the target survive?”
Gay people were harmed by lack of access to marriage or its equivalent in law. Churches are harmed by lack of access to programs like this.
The question in each case is: is the government allowed to inflict it?
It is not about funding weddings. It is about having access to things the state provides if you meet certain criteria like being married.
Prior to same sex marriages being allowed there was nothing stopping you from finding a minister to marry two men or two women. You would be married in the “eyes of God” but in the “eyes of the state”…nope. You would have no access to the benefits that came from the state to married couples.
EDIT: Bricker said it better.
Not harmed, you say? Would you say they both thrived? Would you say a church’s lack of rubberized playground inhibits a church’s function the same way being unable to be legally connected to your life mate inhibits a homosexual’s pursuit of happiness?
Surely you understand that larger questions of law and ethics can manifest in mundane things.
The courts do not decide that rubber playgrounds are minor when marrying the person you love is a big deal.
They look at the underlying principles even if they are mundane because they matter to the society as a whole.
Tinker v. Des Moines was about kids wearing black armbands to school to protest the Vietnam War. Pretty minor thing wearing a black armband but it remains an important case of free speech rights.
Don’t focus on the minutiae…focus on the larger principles at work.
I was focusing on the larger priciple. Not sure you and Bricker are. You are equating government funding with freedom.