The church-state roller-coaster at the U.S. Supreme Court just keeps going and we’re not done yet.
The main purpose of this week’s “Crossroads” podcast (click here to tune that in) was to talk about my recent post about Chief Justice Roberts and his decision to switch sides and defend the high court’s abortion legacy. SCOTUS, on a 5-4 vote, took down a Louisiana state law that would have required doctors working in abortion facilities to have the same kind of admitting privileges at local hospitals and those who work in other specialty surgery centers.
Mainstream journalists didn’t seem interested in the personalities behind that law. To get those ordinary facts, readers had to go to religious and/or “conservative” websites. Thus, I offered this headline: “Conservative news? White GOP justice strikes down bill by black, female pro-life Democrat.” Gov. John Bel Edwards of Louisiana, who signed the bill, is a Democrat, too.
Why did so many journalists ignore that angle? It would appear that those facts didn’t fit into the white evangelicals just love Donald Trump template. Why muddy the political waters with coverage of two Democrats — a black Baptist and a white Catholic?
Lo and behold, by the time we did the live Lutheran Public Radio show, the court had released another 5-4 decision that, at first glance, had little or nothing to do with the Louisiana abortion bill. Here’s the New York Times double-decker headline on that story:
Supreme Court Gives Religious Schools More Access to State Aid
Religious schools should have the same access to scholarships and funds as other private schools, the justices ruled, in a victory for conservatives.
Readers who have followed church-state issues will recognize a key fact that the Times team — to its credit — got into that headline: Secular and religious private schools should be treated the same.
That immediately made me wonder if the Times, and other major mainstream outlets, were going to realize that this “equal access” principle was crucial to the church-state coalition of liberals and conservatives that accomplished so much working with (wait for it) the Clinton White House.
That’s interesting, right? In these dark days for political cooperation and tolerance, wouldn’t it be good to mention that these “equal access” principles are not just a “conservative” thing linked to Trump and, you know, his usual gang?
So I looked for that angle at the Times and elsewhere ( very similar NPR coverage here and then here at The Washington Post). The Gray Lady folks came so close, but they just couldn’t — once again — break out of their niche-news template:
The Supreme Court has long held that states may choose to provide aid to religious schools along with other private schools. The question in the case brought by three mothers with children at Stillwater Christian School, in Kalispell, Mont., was the opposite one: May states refuse to provide such aid if it is made available to other private schools?
Montana’s Constitution, like those of many other states, restricts government aid to religious groups. Those provisions, often called Blaine amendments, were initially adopted in the 19th century and often had the goal of restricting funding for Catholic schools.
Note this Times passage, as well:
Chief Justice John G. Roberts Jr., writing for the majority in the case, Espinoza v. Montana Department of Revenue, No. 18-1195, said that provision of Montana’s Constitution ran afoul of the federal Constitution’s protection of the free exercise of religion by discriminating against religious people and schools.
“A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
Here is another important detail, one that is directly linked to the “equal access” principles of those heady church-state days in the Clinton-Gore era.
In a dissent, Justice Ruth Bader Ginsburg, joined by Justice Elena Kagan, focused on one aspect of the Montana Supreme Court’s decision, which shut down the scholarship program for all schools and not just religious ones. Because no one was eligible for scholarships under the state court’s ruling, Justice Ginsburg wrote, there had been no discrimination.
That is accurate. The whole idea — when working on education issues, especially — was that states could decline to work with secular AND religious programs and nonprofits. But if, let’s say, the environmental studies club was allowed to hold after-hours meetings in a school classroom, then school officials would need to accept, oh, a C.S. Lewis reading circle.
Thus, state officials could not practice “viewpoint discrimination” that said religious speech was uniquely dangerous, compared with speech in secular nonprofit groups. Other than issues of fraud, profit and safety/health, state officials were not supposed to get “entangled” (another crucial term) in doctrinal decisions, saying that the beliefs of some religious groups (progressives, perhaps) were acceptable, while those of traditional religious believers were not.
If this sounds familiar, see the following commentary from one of my “On Religion” columns about ongoing New York City battles over the use of public-school facilities by churches (as well as many other nonprofits). New York officials have started trying to deny churches the ability to rent space:
The question that vexes some educators is whether it's acceptable for churches to worship in their buildings. This is currently allowed under equal-access laws that have become common nationwide in recent decades.
At the heart of the debate is a 2001 Supreme Court decision – Good News Club vs. Milford Central School – that instructed educators to offer religious groups the same opportunity to use public-school facilities as secular groups. School leaders can elect to close their buildings to secular and religious groups alike, thus avoiding discrimination.
Or here is a similar discussion, in a GetReligion post about Times editors struggling to understand how “equal access” principles are involved in that story. This is long, but connects the dots that showed up — once again — in this new Montana case:
Oh. No.
It appears that if a Republican attempting to defend the churches spoke the words "equal access," which means (call it the "religious liberty" principle) that the words "equal access" must be mere spin. There is no way to know that equal-access laws are in effect elsewhere, roughly from coast to coast, and they were the product of an amazingly diverse liberal-conservative legal coalition during the Clinton Administration.
The whole idea, once again, is that the government cannot discriminate against religious speech and symbolic action, thus acting as if religious activities are a uniquely dangerous form of human activity. Officials are supposed to treat religious non-profit groups just like other non-profits. There is no difference between a Baptist church sitting in folding chairs on Sunday morning and a book club for environmentalists filling those same chairs on Tuesday night. The goal is to avoid "viewpoint discrimination" that forces the state to become entangled in doctrinal decisions – creating a church-state nightmare.
However, if schools and other public institutions choose to do so, they are allowed to ban ALL rental agreements with non-profit groups. It's an all-or-none situation, with no discrimination on the basis of content.
One more block of material taken from that same post:
... The Times — AGAIN — has published language suggesting that the only potential church-state question here concerns whether churches and other religious bodies are allowed to rent public spaces in which to hold dangerous worship services. There is no sign — AGAIN — that anyone recognizes that the state is practicing "viewpoint discrimination" against these churches, renting to non-profits whose doctrines and practices are acceptable to state officials, while rejecting these uniquely dangerous religious folks.
The Times is covering a church-state battle in which one side is waving banners that say "free access" while the other side's banners say "viewpoint discrimination." Do the editors know that? Do they realize which side of this battle is the "liberal" side, as defined by that Clinton-era coalition of church-state separationists?
So what happened this time? The exact same thing, it would appear.
Why not mention that “equal access” principles were once acceptable (and not that long ago) on the left, as well as the right? Why stick this story into the tired There Goes Team Trump template?
This new Times story includes many crucial details. The editors, it would appear, simply didn’t want to explore the origins of this decision. Once again: Ignore the Democrats. Make complex stories simple, even when these stories are linked to broad coalitions that are hard to label.
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