Don Crawford

Don Crawford

President of Crawford Broadcasting and the voice of the STAND Podcast

Religious Freedom

Congress shall make no law, NO LAW which in any way abridges the freedom of religion or established religion on its own in the great US of A. So says clearly, unequivocally and unconditionally the First Amendment of our beloved Constitution.

But along the way of our America’s storied history, there have been any number of attempts to limit or even forbid the free exercise of religion. Most have failed but some have managed to survive, like the Blaine Amendment in several of our states, including the great State of Colorado which was passed as far back as the 1800s and survive without challenge since then. The very sad aspect of the Blaine Amendment was that it was anti-Catholic in purpose but it was used in many ways to thwart the religious activities of virtually any religious entity. That was clearly unconstitutional but since this draconian law was never in force or applied to current facts, it stayed on the books.

But then there was another type and kind of well-sounding Constitutional language which when misapplied, would result in unconstitutional discrimination against churches and religious entities. That Constitutional language and its misapplication occurred in the State of Missouri, the state Constitution providing that no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion. That sounds good, constitutional but when misapplied can well result in discrimination, as it was in the case of Trinity Lutheran Church v Comer. In that case, which began in the great State of Missouri, the state had a program which was known as the playground scrap tire surface material grant, providing such grants to schools that resurface their playgrounds with material made from recycled tires. Apparently, no churches need apply. But Trinity Lutheran Church did so apply and of some 45 applicants for state funding, the church application was rated fifth in terms of merit. Nonetheless, any grant even for a playground was denied by the state because the applicant was a religious institution, a church, no matter the fact that no money would be used for proselytizing, converting or otherwise influencing any who played on the playground with respect to Lutheran theology. The playground was open to any in pursuit of charitable and philanthropic purposes. The Missouri Supreme Court said no way and the church appealed to the United States Supreme Court which decided the matter in June. Trinity Lutheran Church claimed that the federal constitutional right to free exercise of religion prevailed and that the State of Missouri was forcing it to choose between its faith and its eligibility for the resurfacing program and the funding which went with it. In a 7-2 decision, the Supreme Court overturned a Missouri policy that discriminated against a church simply because of its religious character, reverse the decision and send it back to Missouri for compliance with the new ruling. In essence, the court’s decision said the following:

When the government announces competitive programs to the public, including the improvement of facilities to foster public health, safety and security, it must allow religious communities to compete on the basis of merit for these benefits.”

It is, said the Supreme Court, an unconstitutional violation of religious freedom to pressure religious communities to renounce their beliefs by threatening to exclude them from competition. The church won and so did religious freedom.

The ruling applies of course to all religious entities including those of the Jewish faith. The UNION OF ORTHODOX JEWISH CONGREGATIONS stated in its amicus brief to the Supreme Court in support of Trinity Lutheran Church that:

When it comes to health, safety, security and sustainability, religious institutions deserve the same legislative protections afforded all other institutions.”

And, indeed they do, constitutionally so in every way possible. Level the playing field and give any entity or even individual for that matter the opportunity to constitutionally compete for federal and state funding when it becomes available. Churches should be able to serve the needs of all Americans through their facilities as any other entity would.

At the crux of its
TRINITY LUTHERAN opinion, the Supreme Court observed that the government’s position “puts Trinity Lutheran to a choice: it may participate in an otherwise available benefit program or remain a religious institution.” That the court said is constitutionally unacceptable. No public funding, federal, state or local should ever force a religious entity to forsake its purpose as a religious institution. The FREE EXERCISE CLAUSE of the First Amendment bars the government from forcing religious entities to choose between freely exercising their religion and being involved in the public square. Interestingly, seven of the nine Supreme Court justices voted in favor which many feel is a great victory for the First Amendment and Freedom of Religion. I do, don’t you?

Chief Justice John Roberts wrote the opinion for the Supreme Court in Trinity Lutheran Church v Comer. The Roberts’ opinion stops short of the whole sale redefinition of church-state separation that religious advocates supporting the case had wanted. The Roberts’ opinion, joined by other justices, comprehended the specific facts of this case, namely funding applications for playgrounds and anything similar to playgrounds, but no more. Roberts noted in a footnote to the case that the court:

Did not address religious uses of funding or other forms of discrimination.”

So that, the decision no matter the dissent left open so many issues of church-state relationships which must be decided in future cases. That is indeed unfortunate, providing a certain specific clarity on the one hand, but confusion with respect to other “forms of discrimination” against churches and religious entities in the future.

Seven Supreme Court justices voted in favor and for this narrow interpretation of the result. They were most interestingly:

  1. Chief Justice John Roberts

  2. Justice Clarence Thomas

  3. Justice Neil Gorsuch

  4. Justice Anthony Kennedy

  5. Justice Samuel Alito

  6. Justice Elena Kagan

  7. Justice Stephen Breyer

Breyer and Kagan are of course liberal justices and it was somewhat surprising that each voted in favor of Trinity Lutheran Church. The only opposing justices were perhaps the most liberal on the court, namely:

  1. Justice Sonia Sotomayor

  2. Justice Ruth Bader Ginsburg

Their negative vote was fully expected.

The conservative Justices Clarence Thomas and Neil Gorsuch participated in the result of the case but explicitly rejected Chief Justice Roberts’ footnote which again stated that the Trinity Lutheran Church v. Comer case did not “address religious uses of funding or other forms of discrimination.” In other words, the court’s decision should be narrowly interpreted and applied only to the facts of this case or anything similar or identical to the facts of the case. In their denial of the narrow interpretation, Justices Thomas and Gorsuch, favoring a much broader decision in favor of the church, stated the following:

The Constitution guarantees the free exercise of religion, not just the right to inward belief or status.”

In short, the Justices would take a very broad and unconditional view of the Constitutional guarantee of the right to the free exercise of religion without restriction! Apparently, other Supreme Court Justices disagree. And, without individual comment, Supreme Court Justices Kennedy, Alito, and Kagan join the Roberts’ opinion without comment, agreeing with the narrow interpretation view.

Justice Stephen Breyer agreed with the result on the playground subsidy and the right of the church to apply for and receive state funding but wrote a separate opinion to stress the fact that he viewed the decision as applying only to:

A general program designed to secure or to improve the health and safety of children, leaving other kinds of public benefits for another day.”

So that, in Breyer’s view, any other kind of public benefit which might go to a church or religious entity from state funds other than any general program which was designed to secure or improve the health and safety of children, no matter how meritorious or Constitutional, would need to be decided by the courts at another time based on the facts of that particular matter. Conservatives and advocates of unbridled religious freedom and exercise thereof were of course disappointed in such a concurring opinion. Nonetheless, Breyer voted with the majority and in favor of the church.

Two liberal justices dissented, namely Sonya Sotomayor and Ruth Bader Ginsburg. Justice Sotomayor penned a dissenting opinion to the Roberts’ opinion, actually weeding that opinion from the bench, as follows:

History shows that the religion clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government.”

In short, the Sotomayor opinion would totally separate governmental, public funds from any religious entity, whether church or not if to grant such funds to a church for any purpose, including playgrounds would even indirectly benefit a religious organization. Justice Ginsburg agreed. Interesting indeed, is it not, how divided our United States Supreme Court can be, and that nine justices can render four different opinions, FOUR with respect to the result in the TRINITY LUTHERAN CHURCH case. You can be certain that the next religious freedom or First Amendment case which the Supreme Court decides will also result in various opinions and differences no matter the facts. To the chagrin of religious freedom advocates and especially conservatives, the broader and unconditional issue of Freedom of Religion is in fact some ways uncertain and perhaps will be reinterpreted again and again. More work to do, my fellow Americans, conservatives and Christians in order to make certain that precious right never goes away.

The Trinity Lutheran Church case was the first opportunity for new Supreme Court Justice Neil Gorsuch to weigh-in and for us, we the people to really learn how he thinks and how he decides. Gorsuch wrote that the Constitution:

Guarantees the free exercise of religion, not just the right to inward belief (or status).”

In short, the free exercise of religion can not be circumscribed or abridged in any way. That includes no unfair distribution or granting of public funds, federal or state. If Justice Gorsuch had written the opinion, this case would have been decided upon the principle of an entire and complete redefinition of church and state separation, so deeply desired by religious advocates. That would have been the real and ultimate victory but, as with the Affordable Care Act, the Roberts’ court and his opinion stop short of dealing with general principles and decided on a narrow factual basis. More to come to be sure.

And more from Justice Neil Gorsuch who stated some very interesting things in his concurring but differing opinion. Gorsuch said:

Does a religious man say grace before dinner? Or, does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? I don’t see why (said Gorsuch) it should matter whether we describe that benefit (Missouri state funding) as closed to Lutherans or closed to people who do Lutheran things. It is free exercise of religion either way.”

In short, it is not the court’s business to try to separate and segregate religious factors which can be intertwined with state funding in a Constitutional way. It doesn’t matter if the people who own, built and refurbished with state funding are Lutheran and “do Lutheran things.” It seems as though Gorsuch is saying that even if the playground in usage provides some indirect or even remote benefit to the Lutheran church, such a benefit is not discrimination and not unconstitutional. That of course was the broader interpretation of the free exercise clause which so many conservatives and religious advocates wanted. MAYBE NEXT TIME!

In other words, Justice Gorsuch joined with Justice Clarence Thomas clearly states that the court’s playground decision should be understood broadly because jurisprudence must be governed by general principles. To that end, Gorsuch stated the following:

The general principles here do not permit discrimination against religious exercise, whether on the playground or anywhere else.”

No discrimination, all 50 states and especially Missouri, against religious entities:


Fortunately, there have been other religious freedom victories. In the State of Montana, a state ruling that prevented a voucher program from being used at religious schools was overturned. The Georgia Supreme Court unanimously upheld a program of tax credits for scholarships to some 13,000 students to attend private schools. That includes religious schools, another win at the state level for the First Amendment.

But the battle rages on, my fellow Americans. It is far from over. There are many and there is much in our country which is anti-religious, and especially anti-Judeo-Christian, wanting and aggressively fighting to get all such out of the public square and confined to the four walls of a church. We as people of faith and in fact all true constitutional Americans must never let that happen. We are nation, said our Founding Fathers, founded upon the principles of religion and morality (George Washington) with a strong belief in Almighty God as the Creator of the universe, the very one endowing our great country and its Constitution with the inalienable rights of our Constitution and especially our beloved First Amendment and we must protect and defend that at all costs. I for one am in the fray and I pray you are as well.

Perhaps, the most important words in our entire Constitution and its 27 Amendments are as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Those the unconditional words of the First Amendment to the Constitution of the United States. THE VERY FIRST!

We can say that our Founding Fathers regarded that as the first and most important freedom. They gave it to us some 241 years ago. Shame on us if we let that precious freedom become eroded much less eliminated. If WE THE PEOPLE let that happen, it will be gone forever as President Ronald Reagan reminded us:


Don’t let it happen my fellow Americans. DON’T LET IT HAPPEN!

Share this post