The nation’s highest court ruled today that a Lutheran preschool in Missouri has a religious freedom right to receive public funds. The case, Trinity Lutheran Church of Columbia v. Comer, has significant implications for the separation of church and state: As Stephanie Russell-Kraft previously reported for the New Republic, a positive ruling for the church could lead to further attacks on state constitutional provisions blocking state aid to religious institutions. It’s great news for the likes of Betsy DeVos, who has long sought public funding for private religious schools.
But you wouldn’t know any of that from the court’s opinion, authored by Chief Justice John Roberts:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.
Perhaps most odious is Roberts’s decision to compare the case to an old Maryland law barring Jews from holding public office. It’s almost verbatim the argument the religious right used to defend Trinity Lutheran. Roberts, like the church itself or its fundamentalist defenders, never acknowledges the consequences of his reasoning: Taxpayers will be forced to subsidize churches.
This is a drastic redefinition of religious freedom, twisting the principle of separation of church and state into a kind of discrimination against the church. Churches will be able to use public funds to support their educational missions, and in many cases that means teaching children that LGBT people are abominations and that women do not deserve the right to control their bodies.
Considering the implications of today’s ruling, it’s disturbing that only two justices dissented from the majority opinion. This also spells trouble for another upcoming case: The court announced today that it will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission. Masterpiece centers on a baker’s assertion that he deserves an exemption from a local anti-discrimination ordinance that requires him to serve LGBT people. The baker, Jack Phillips, has yet to persuade a court that his argument has merit.
His attorneys, from the Alliance Defending Freedom, have framed the case as a matter of “artistic freedom,” or free speech. Forcing Phillips to serve LGBT people not only violates his religious freedom, they argue; it also requires him to express beliefs he does not hold. That’s tempting bait for Justice Anthony Kennedy, who tends to favor a generous interpretation of free speech, even if he authored the landmark 2015 ruling legalizing gay marriage.
At stake are the rights of LGBT people. Because LGBT people are not a federally protected class, they are not guaranteed discrimination protections. Some states and municipalities have passed anti-discrimination ordinances that expressly protect LGBT people, and those laws are subject to frequent challenge by conservative Christians.
The conservative argument necessarily downplays the pain and humiliation an LGBT person experiences as a result of discrimination and exaggerates the consequences of asking a Christian to adhere to secular law. Groups like the ADF argue that LGBT people can simply get service elsewhere. And in large cities like New York, this is technically true. But it doesn’t ameliorate the pain discrimination inflicts, and it also isn’t universally accurate. In smaller, more conservative communities, the stakes are different. A right exists only on paper if individuals cannot meaningfully access it.