It’s been a busy day for the Establishment Clause of the First Amendment. The U.S. Supreme Court’s jurisprudence on separating church and state is long and, in many cases, self-contradictory and even incoherent. But despite all that fog, there are a few solid ideas that emerge.
The Washington Post reports that the U.S. Supreme Court has agreed to hear the case of a Colorado baker who refused to bake a wedding cake for a same-sex couple’s wedding reception, claiming that to do so violated his constitutional right to religious liberty. Masterpiece v. Colorado Civil Rights Commission. The actual decision is probably a year away, but it will be interesting to hear what Gorsuch has to say.
As some ancient sage said, predictions are always dangerous, especially when they involve the future. But here goes. My prediction is that the case will go against the baker.
Were I to walk into a kosher deli and order a cheeseburger, the deli owner would almost certainly not serve me because they serve only food that complies with their religious rules.
But there’s a world of difference between not serving someone because the dish they’re asking for is against your religious principles (and therefore not even on the menu), and not serving someone a dish that is on the menu because that person’s existence or nature is against your religious principles. To call that an exercise of your own “religious liberty” is Orwellian. If that’s religious liberty, then it’s a very short step for a restaurant run by neo-Nazi skinheads (assuming one existed, and, if it did, it could stay in business for more than a week) could refuse to serve anyone who doesn’t meet their definition of Aryan.
Today as well, in the Trinity Lutheran case, the U.S. Supreme Court ruled that taxpayer-funded grants for playgrounds available to nonprofits under a state program could not be denied to a school run by a church. Though the commentariat sees this as shattering the separation between church and state, I don’t. In 1971, the Court decided Lemon v. Kurtzman, which set forth a 3-point test for such statutes: there must a secular purpose behind the statute; the statute’s primary effect must be one that neither promotes nor inhibits religion; and the statute must not foster “excessive government entanglement with religion.” Trinity Lutheran involved public funds used to re-pave playgrounds with rubberized material that’s easier on the knees than asphalt or cement. Before someone sounds alarm bells about Trinity Lutheran, they should first explain why it does not fit fairly within the Lemon v Kurtzman criteria.
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