Judge Neil Gorsuch, Trinity Lutheran Church and Religious Freedom

By Deacon Keith Fournier Published on February 7, 2017

In April, the Justices of the United States Supreme Court will hear a significant religious freedom case concerning the proper interpretation of the establishment clause of the First Amendment to the Bill of Rights. The case is styled Trinity Lutheran v. Pauley.

The Lutheran parish after which the case is named probably never anticipated it would play an historic role in legal history.

But, it will.

This case is but one example why the quick approval of Neil Gorsuch by the Senate is crucial. Efforts to derail this highly-qualified judge, couched in sophistry and feigned concerns about suitability, are a concerted effort by left wing politicians and interest groups to prevent him from ending their continued misuse of the courts.

Case and Controversy

Trinity Lutheran Church provides a daycare service complete with a playground also open to children in the neighborhood. The State of Missouri offers grants to non-profit organizations to enable them to install safer rubber surfaces made from recycled tires to replace gravel on playgrounds. In 2012, the church applied for such a grant. Its application was well written and fully complied with the requirements. In fact, it ranked fifth out of forty-five applications.

The application was denied because Trinity Lutheran is a church. “What?,” you may ask. “Isn’t such hostility toward a church unconstitutional?” Well, not in states with so-called Blaine Amendments. Missouri is one of those states.

Some history will put the matter in context.

Catholics in U.S. History

When the U.S. Constitution was ratified, the Catholic population was a negligible minority in the United States. At hardly one percent of the national population, they numbered a mere 30,000 at the time of the American Revolution. Their numbers grew to 1.6 million by 1850. When the first wave of Catholic immigrants came to America, they practiced a different sort of Christianity than the majority Protestant  population.

As this Catholic minority grew, some Protestants responded negatively. One of the weapons employed was the common (public) school system. In those days, prayer and bible readings were common in the common schools. However, some common schools did not respect the desires of Catholic parents to keep their children Catholic.

Catholics began to form their own schools to ensure that their children could practice their faith and maintain their Catholic identity. They sought funding in keeping with the process used for common schools. This set Catholic schools in competition with the common school system. It also fed a growing effort to deny state aid in any form to schools labeled “sectarian,” which became a code word for “Catholic.” Congressman James Blaine of Maine, no friend of Catholics, helped champion this effort.

In 1875, while speaker of the House, Blaine tried to amend the U.S. Constitution to prohibit the use of taxpayer funds at “sectarian” schools. His effort at the federal level failed, but versions of his amendment are still found in 37 state constitutions. Missouri is one of those states.

These amendments have now become clubs wielded against all churches, seeking to deny them full participation in the American polity. Trinity Lutheran Church simply wants to provide a safer playground for little kids to play on. But the church has had to go all the way to the U.S. Supreme Court because their application for equal access to state grant money is considered a constitutional crisis!

A quick review of the founding documents reveals just how absurd this has all become.

The Bill of Rights

The First Amendment to the Bill of Rights begins with these words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first part, called the ‘Establishment Clause,’ was really an anti-establishment clause. It was intended to prohibit the establishment of a federal or state-sponsored church that mandated adherence from unwilling citizens.

The second part is called the ‘Free Exercise Clause’ and addresses the active expression of faith, across the full panorama of daily life. The American founders did not use the expression freedom of worship precisely because they meant something more. They sought to protect the right of a religious citizen to live their faith, once they left their Sunday church services.That included engaging in commerce, participating in politics, and pursuing liberty and happiness.

The founders also respected the role of churches and religious institutions in the American polity. Sadly, poorly reasoned Supreme Court opinions have eroded both clauses. Further, as the intolerance of secularism and progressivism has become more deeply entrenched, we have simply accepted the anti-religious spin used to reinterpret our founding documents.

Taxes and Governmental Coercion

When the Bill of Rights to the United States Constitution was enacted there was no Internal Revenue Service. The first income tax was assessed in 1862 and Congress established a Commissioner of Revenue. It was repealed ten years later. In 1894, Congress revived it, only to have the U.S. Supreme Court strike it down as unconstitutional. It was only after the 16th amendment was ratified in 1913 that the income tax was established and a commission vested with oversight for its collection.

Since then, the IRS has become a behemoth. And we seem to accept the mistaken notion that a bloated agency of the federal government is the arbiter for interpreting the meaning of the Establishment clause and the Free Exercise Clause of the Bill of Rights.

So, the vestige of anti-Catholic bigotry that led to the Blaine Amendments is now a threat to all faithful Christians — Protestant, Catholic or Orthodox. These Amendments are routinely used to prevent Christian schools, churches and institutions from fully participating in commerce and public service.

Judge Gorsuch and Religious Freedom

This brings me to the nomination of Judge Neil Gorsuch. 

He is a brilliant judge with a record of properly interpreting the First Amendment. That is why secularist politicians and well-funded leftist interest groups want to prevent his appointment to fill the seat vacated by the late Justice Scalia. They know of his record in defense of religious freedom and the Bill of Rights. They fear that he will help to repair the broken-down edifice of establishment clause jurisprudence in American law.

They must not succeed. 

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