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Trinity Lutheran v. Comer: Not Your Average Playground Scuffle

In 2012, Trinity Lutheran Church in Columbia, Missouri, faced a problem: its playground was covered with pea gravel—coarse stone fragments that make for a perilous play surface.

Fortunately, Missouri’s Department of Natural Resources runs a grant program that reimburses non-profit organizations for installing playground surfaces made from recycled scrap tires. Hoping to defray the expense of resurfacing its playground, the church submitted an application.

Although the Department ranked Trinity Lutheran’s application fifth out of the 44 submissions it received and awarded 14 grants, it denied the church’s application. Its reasoning? A state constitutional provision—known as a Blaine Amendment—that bars religious institutions like Trinity Lutheran from receiving state funding.

Blaine amendments are the remnants of a wave of anti-Catholic sentiment that swept the nation during the nineteenth century. The original Blaine Amendment, named for Maine Senator James G. Blaine, was designed to protect the existing Protestant monopoly on schools by barring state funding of “sectarian” (i.e., Catholic) institutions. Though Senator Blaine’s amendment failed to gain the necessary votes in Congress, thirty-seven states incorporated similar language into their constitutions. Washington State was one of them.

Washington’s Blaine Amendment remains wholly intact; that is, unless Trinity Lutheran has its way in the Supreme Court. By the end of its term on June 30, the Court will very likely decide whether excluding religious institutions from a secular grant program under a state Blaine Amendment violates the U.S. Constitution.

Here, Trinity Lutheran contends that government should not be able to deprive religious institutions of the benefits it makes available to all. To do so would run afoul of the Constitution’s Equal Protection and Free Exercise clauses which, when read together, provide that states must generally treat religious individuals the same as they would treat any other individuals. When a state does subject a religious individual or entity to unequal treatment, it must provide an especially compelling reason for doing so.

The government’s rationale behind the grant restriction boils down to avoiding the establishment of a state religion. A decision in favor of Trinity Lutheran would compel taxpayers to fund improvements to church property. This arrangement, according to the Department, constitutes unlawful state funding of religion. Unlawful, that is, under the Supreme Court’s current interpretation of the Establishment Clause.

The government’s argument rests on a fundamental misreading of the Constitution. For decades, the Supreme Court has insisted that government must not only avoid favoring one religion over another, but avoid preferring religion over non-religion. Scholars have vigorously debated whether this principle accurately reflects the Establishment Clause’s meaning since 1947, when the Supreme Court handed down its misguided decision in Everson v. Board of Education.

Aside from the merits of either interpretation, the inescapable consequence of the Court’s interpretation pits the First Amendment’s two religious clauses against one another in case after case. Trinity Lutheran’s dispute provides yet another example of this unresolved tension.

It is highly unlikely that the Supreme Court will resolve the Free Exercise/Establishment Clause debate here. Nonetheless, Trinity Lutheran has offered the Court a ripe opportunity to chip away at—if not abolish altogether—the anti-religious legacy of state Blaine amendments.

That is, assuming the justices aren’t too chicken to play.


Christina Pesavento is a blog contributor from the “other” Washington (Washington, DC), where she works at a legal non-profit association. She previously served as a law clerk with the U.S. Senate Judiciary Committee and was president of the Federalist Society chapter at the American University Washington College of Law.


 

Quick Take on Washington State’s Judicial Races and Ballot Measures

With ballots hitting mailboxes beginning today, Washingtonians are choosing how to vote on a wide variety of ballot items. Here’s some information on some of the lesser-known items on your ballot.

Judicial Races

Three of the Washington Supreme Court’s nine justices are up for re-election. The court, thought by many to be one of the most progressive and liberal supreme courts in the United States, has handed down some very unpopular decisions in recent years. You can read more about those decisions here.

Chief Justice Barbara Madsen (website) joined the court in 1992 as the first woman to be popularly elected to the Court in Washington state history. She was re-elected in 1998, 2004, and 2010, and has presided over the court as Chief Justice since 2010. Madsen is being challenged by Kittitas County Prosecutor Greg Zempel (website), who has served in that role for 22 years.

Justice Charles Wiggins (website) was first elected to the Washington Supreme Court in 2010. Judge David Larson (website), who serves as the presiding Judge at the Federal Way Municipal Court, is challenging him for the seat.

Justice Mary Yu (website) has served since being appointed to the Supreme Court since 2014, after 14 years as a King County trial court judge. She is the first lesbian to serve on the Supreme Court, and is being challenged by David DeWolf (website), a retired constitutional law professor from Gonzaga.

Challengers Zempel, Larson, and DeWolf are being supported by right-of-center interests in an effort to bring more balance to the Supreme Court.

There are also dozens of lower court races of interest around the state as well, such as the race between Judge Alex Ekstrom – the judge who ruled against Barronelle Stutzman – and his challenger, Alicia Berry, a lawyer who represented Mrs. Stutzman in that case. Please consult the voter guide from the Secretary of State’s office to learn more about candidates in those local races.

Ballot Measures

Initiative No. 1433 concerns labor standards:

  • This measure would increase the state minimum wage to $11.00 in 2017, $11.50 in 2018, $12.00 in 2019, and $13.50 in 2020, require employers to provide paid sick leave, and adopt related laws.

Initiative No. 1464 concerns campaign finance laws and lobbyists:

  • This measure would create a campaign-finance system; allow residents to direct state funds to candidates; repeal the non-resident sales-tax exemption; restrict lobbying employment by certain former public employees; and add enforcement requirements.

Initiative No. 1491 concerns court-issued extreme risk protection orders temporarily preventing access to firearms:

  • This measure would allow police, family, or household members to obtain court orders temporarily preventing firearms access by persons exhibiting mental illness, violent or other behavior indicating they may harm themselves or others.

Initiative No. 1501 concerns seniors and vulnerable individuals:

  • This measure would increase the penalties for criminal identity theft and civil consumer fraud targeted at seniors or vulnerable individuals; and exempt certain information of vulnerable individuals and in-home caregivers from public disclosure.

Initiative No. 732 concerns taxes:

  • This measure would impose a carbon emission tax on certain fossil fuels and fossil-fuel-generated electricity, reduce the sales tax by one percentage point and increase a low-income exemption, and reduce certain manufacturing taxes.

Initiative No. 735 concerns a proposed amendment to the federal constitution:

  • This measure would urge the Washington state congressional delegation to propose a federal constitutional amendment that constitutional rights belong only to individuals, not corporations, and constitutionally-protected free speech excludes the spending of money.

U.S. Supreme Court Blocks Transgender Bathroom Mandate

 

The U.S. Supreme Court has blocked a 4th Circuit Court order mandating that schools nationwide open their locker rooms, showers, and bathroom facilities to students based upon their gender identity claims.  The Virginia school board that had originally been struck down by the Circuit Court is still planning to appeal to the Supreme Court to overrule the order entirely.

This is a huge — albeit, temporary — victory for privacy and safety rights for students, as well as state and local sovereignty, in the United States.

To follow the conversation, follow FPIW on Twitter @FPIW.

U.S. Supreme Court Declines to Hear WA Religious Freedom Case

 

The U.S. Supreme Court has made major news for two consecutive days, and not in a good way.

Stormans’ Pharmacy in Olympia had appealed to the U.S. Supreme Court after the state ordered it to dispense Plan B, morning-after, and week-after pills.  The family-owned pharmacy had previously declined to dispense the drugs, citing the owners’ personal and religious convictions, and likening the use of such pills to abortion.

The Supreme Court decided in a 5-3 vote not to hear the case, with Justices Alito, Thomas, and Roberts dissenting.  “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern,” Justice John Roberts wrote.

Justice Alito’s strong dissent was simple. The government is now prepared, he said, to tell you: “Violate your sincerely held religious beliefs or get out of the pharmacy business.”

The pharmacy had proposed that it would accommodate any customers seeking the drugs by sending them to one of over 30 other pharmacies within a five-mile radius.  But the state rejected this proposal, stating that the pharmacy’s obligation to dispense the drugs was more important than a pharmacist’s religious objections.

The case now heads back to the lower courts for further review.

Follow this story and others by following FPIW on Twitter, @FPIW.

 

Supreme Court Hears Arguments on Abortion Case

Just two weeks after the death of U.S. Supreme Court Justice Antonin Scalia, the U.S. Supreme Court has heard oral arguments on the biggest abortion challenge in 25 years.

The case tests the Constitutionality of Texas’ common-sense regulations on clinics that provide abortions within their state.  In 2013, Texas moved to ensure that clinics had admitting privileges at hospitals, in the event that something went wrong during the procedure.  They reasoned, correctly, that abortion providers shouldn’t get a pass on basic state health standards simply to keep them in the market.

While deliberations in this case were likely to take months anyway, the complications arising from Justice Scalia’s death are undeniable.  Until a successor to Scalia is confirmed by the U.S. Senate, the Court is likely to be split on many issues, though this isn’t the first time the Supreme Court has had to operate with an even number of justices.

Still, states, including Washington, shouldn’t be in the business of subsidizing inferior care in order to make it easier for abortionists to enter & stay in the market.

We stand with Texas in their fight to protect women from dangerous and negligent practices, and urge Washington’s lawmakers to take similar steps.

Follow @FPIW on Twitter for updates.

Supreme Court to Hear Major Abortion Case

The U.S. Supreme Court will officially hear arguments on the appeal of H.B. 2, the law passed by the Texas legislature that requires abortion clinics meet the same health standards and regulations as other outpatient surgery centers, as well as require abortionists to have admitting privileges at local hospitals.

Sign the petition to Investigate Planned Parenthood in Washington!

After the law passed in Texas, abortion clinics in the state appealed to the Supreme Court claiming the law unconstitutionally burdens women’s access to abortion because it may result in the closure of a number of abortion facilities that would fail to meet the safety standards.

That’s kind of the point, no?

Texas led the way in its effort to make sure a woman’s health isn’t in jeopardy when visiting an abortion clinic.  By holding the facilities accountable to sanitation standards and by requiring the doctors performing abortions to have authorization to admit a woman to a hospital if anything goes wrong, it appears evident that Texas really does care most about women’s health.

Even with the existing framework thrust upon us by Roe v. Wade, the Court’s opinion was quite clear in making sure that states maintained the right to place reasonable requirements on clinics, especially when they were enacted in the interest of the health of the woman.  The Court’s opinion stated:

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.

It’s very hard to imagine how Texas’ efforts would have crossed a constitutional line. But nonetheless, a victory for Texas in June would be a major victory for the safety of women and the eventual abolition of abortion.

 

You can read more about the legal standards and precedents to will be examined here.

Sign the petition to Investigate Planned Parenthood in Washington!

 

U.S. Supreme Court to Hear Little Sisters of the Poor Case

The U.S. Supreme Court has decided to hear the lawsuit filed by Little Sisters of the Poor, a group of nuns who objected to the Obamacare mandate that requires employer insurance plans to provide contraceptives.

To read more on the case’s background and history, visit the case page at Becket Fund for Religious Liberty.

Several colleges are also expected to join the case against the mandate, citing religious objection, claiming that the religious exemption supposedly offered by the Affordable Care Act is not sufficient to exempt many religious organizations.

“Efforts to force nuns to buy contraceptives are not only counterproductive, but they are contrary to the values of individual rights and religious freedoms,” said Joseph Backholm, Executive Director of the Family Policy Institute of Washington.  “Like other mandates, we hope the Supreme Court will again halt this overreach by the federal government.”

The Supreme Court is expected to begin hearing oral arguments in the Spring 2016.