Monday, August 15, 2016
Here, thanks to the good people at SCOTUSblog, are some thoughts of mine about the upcoming Trinity Lutheran case -- another one that, I cannot help thinking, will turn out differently than in would have otherwise as a result of Justice Scalia's death.
I end with this:
Will any of the Justices examine or embrace the claim, advanced in the amicusbrief filed by the Lambda Legal Defense and Education Fund that the Constitution should be read to disallow government from cooperating, even through neutral programs, with religious organizations that “discriminate on the basis of religion and other grounds”? I have argued in academic writing that it is a mistaken oversimplification to equate invidious and irrational “discrimination” by governments with religious organizations’ efforts to operate in keeping with their religious teachings, character, and mission. The government, of course, may and should not discriminate on the basis of religion. However, there is not (or, at least, there should not be) anything objectionable about a religious school or social-welfare agency hiring for mission. Nor does the latter become objectionable, let alone unconstitutional, simply because the religious actor is cooperating with the government to do good works like feeding the hungry, caring for the sick, or educating the young. Unfortunately, some seem determined to wage an aggressive culture-war campaign that conflates religious commitments with “bigotry.” Will the Court resist, or enlist in, this effort?
“Separation of church and state” is an important idea. Correctly understood and reasonably implemented, it is a limit on government that protects religious freedom by preventing the government from corrupting religion or interfering in religious groups’ affairs. It does not require, though, and the Constitution’s neutrality principle should not permit, the pointless discrimination at issue in Trinity Lutheran Church.