Category Archives: First Amendment

Media Advisory – Dignity Denied: Religious Exemptions and LGBT Elders

Dignity Denied: Religious Exemptions and LGBT Elders

Media Advisory: The Public Rights/Private Conscience Project joins SAGE and the Movement Advancement Project announce the release of a groundbreaking report entitled, Dignity Denied: Religious Liberties and Elder Care, on the negative impacts Religious exemption laws and policies have on elder LGBT persons in the United States, and how these policies put elder LGBT persons at risk of discrimination.

Date:
Friday, December 15, 2017
12:00 pm – 2:00 pm

Location:
Union Theological Seminary
Columbia University in the City of New York
3041 Broadway (at West 121 Street), Room 207
New York, NY 10027

Press Contact:
Liz Boylan
Associate Director, Center for Gender & Sexuality Law, Columbia Law School
212.854.0167 | eboyla@law.columbia.edu.

[NEW YORK] The Public Rights/Private Conscience Project is thrilled to join SAGE, the nation’s largest and oldest organization dedicated to improving the lives of LGBT elders, and the Movement Advancement Project in announcing the release of a groundbreaking report on how Religious exemption laws and policies have a disproportionately negative impact on elder LGBT persons in the United States.

The report will be launched with a panel discussion and luncheon on Friday, December 15th at Columbia University’s Union Theological Seminary.  The program will detail the increased risks LGBT older adults face as a result of recent religious exemption laws and policies that enable a “right to discriminate.”

This program is free and open to the public.  Please RSVP via: utsnyc.edu/SAGE

  • Alex Sheldon, Research Analyst, The Movement Advancement Project
  • Audrey Weiner, President and CEO, The New Jewish Home
  • Carmelyn P. Malalis, Chair and Commissioner, New York City Commission on Human Rights
  • Fred Davie, Executive Vice President, Union Theological Seminary
  • Jonathan Soto, NYC Mayor’s Office: Executive Director of the Center for Faith and Community Partnerships
  • Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project, Columbia Law School
  • Michael Adams, CEO, SAGE
  • Rose Saxe, Senior Staff Attorney, LGBT & HIV Project, American Civil Liberties Union
  • Sandy Warshaw, SAGE Constituent

“This report, and the amicus brief SAGE filed in the Masterpiece Cake case, clearly demonstrate that personal religious beliefs should never be a license to discriminate against LGBT people or anybody else,” says Michael Adams, CEO of SAGE. “That’s why we are bringing together aging experts, religious leaders, and our elders, to expose the dangers that so-called “religious exemptions” pose for LGBT elders who need care and services. We must not allow the doors of a nursing home or a critical care provider to slam in LGBT elders’ faces just because of who they are and whom they love.”

Anti-discrimination Laws Don’t Burden Religious Freedom—They Secure It

Read our amicus brief for Masterpiece Cakeshop v. Colorado Civil Rights Commission here.

In cases around the country, business owners who are religiously opposed to marriage equality are suing for the right not to provide services like flowers, invitations, and cake to same-sex couples celebrating their wedding. Most notably, the Supreme Court will be deciding Masterpiece Cakeshop v. Colorado Civil Rights Commission this session—a case involving Jack Phillips, a Colorado bakery owner who violated that state’s antidiscrimination law by refusing to make a wedding cake for fiancées Charlie Craig and David Mullins.

These cases are framed specifically to pit LGBTQ rights against religious freedom in a way that is both oversimplified and misleading. Phillips’ brief complains that by requiring him to provide a wedding cake to same-sex couples, the state law provides “broader protection to LGBT consumers than to people of faith.” It’s true that in this circumstance, lower courts held that equality norms should take precedence over a business owner’s religious views. The larger reality, however, is that people of faith (some of whom are, of course, LGBTQ or LGBTQ-affirming) depend on rigorous and universal enforcement of antidiscrimination laws to protect and secure their religious freedom.

Religious freedom protections and antidiscrimination laws typically work together to ensure that people of all faiths are able to coexist in the public sphere. The Supreme Court’s most significant early free exercise cases drew a connection between the protection of religious liberty and principles of non-discrimination, grounding the standard of review for religious liberty claims in the standard honed in equal protection cases.  Even as the Court has adjusted the standard of review in constitutional free exercise cases, it has not abandoned the core equality principle that animated its earlier jurisprudence, retaining strict scrutiny for government action that is non-neutral with respect to particular religious beliefs, and describing it as a “nonpersecution principle.”

Allowing business owners to ignore antidiscrimination laws that conflict with their religious beliefs would threaten grave harms to people of faith, and especially to religious minorities. While federal and state civil rights laws law ban discrimination on the basis of religion, it is nevertheless pervasive. Claims of religiously-motivated discrimination—including the denial of public accommodations, employment, and housing as well as perpetration of hate crimes— have risen dramatically over the past decade. Discrimination is particularly severe for minority religious groups, and especially for Muslims. Over the past year, sixty percent of American Muslims have reported some level of religious discrimination. Over twenty percent of the Equal Employment Opportunity Commission’s (EEOC) charges of religious discrimination in 2015 related to Muslims, despite their representing only one percent of the U.S. population.

If business owners were permitted to ignore antidiscrimination laws based on their personal religious beliefs, they could deny a range of goods and services to members of religious groups that they consider objectionable. For example, they might refuse to cater an interfaith or non-Christian wedding or to sell clothing to Muslim or Jewish women that embrace modesty values, based on a religious objection to their practices. This is not a merely theoretical concern: in recent cases, individuals from a hotel owner to a police officer have voiced religious objections to serving those of other faiths. In fact, Phillips’ own brief acknowledges that he would refuse to provide any goods that “promote atheism.”

Furthermore, any ruling for Masterpiece Cakeshop could not be easily contained to the public accommodations context, but would likely lead to religiously-motivated discrimination in employment and housing. Last year, a federal District Court held in EEOC v. R.G. & G.R. Harris Funeral Homes that a funeral home owner who objected on religious grounds to allowing a transgender woman employee to dress in skirts at work should be entitled to an exemption from federal sex discrimination law. This case is on appeal; however, a ruling for Masterpiece Cakeshop would open the door to similar claims against religious minorities. For example, such a ruling could allow employers to violate employment anti-discrimination law by refusing to hire employees who wear hijabs, turbans, yarmulkes, or other religious clothing. The employer could argue that he believes allowing employees to wear such garb at his workplace amounts to an endorsement of their religious practices, and therefore conflicts with his own religious faith.

Religious liberty and equality in the public sphere are both fundamental American values. In the vast majority of cases, anti-discrimination law protects both religious freedom and equality by ensuring that those of all faiths, including unpopular faiths, are able to work and participate in the public marketplace without facing discrimination from either the government or other citizens. The risks to religious freedom of allowing exemptions from anti-discrimination law would far outweigh any benefit to those with a religious opposition to marriage equality. Such exemptions threaten to decimate the protections for religious minorities that have long offered them some measure of defense from discrimination in their daily lives. As the U.S. becomes more religiously diverse, our commitment to religious plurality has become all the more essential. It should not yield to those who wish to serve, house, or employ only those who share their religious beliefs, on marriage or otherwise.

Columbia Law Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage

Press Statement: October 6, 2017

Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort to advance a limited set of conservative religious beliefs while limiting the liberty and equality rights of women, LGBTQ people, people of color, and religious minorities.

For over seven years, the religious right has waged a battle to limit the scope of preventive health care services covered by the ACA, including essential reproductive health care. In 2014, they won a significant victory when the Supreme Court ruled in Burwell v. Hobby Lobby that secular for-profit companies could assert religion-based waivers from the duty to include health care coverage for contraceptives in their employee health plans. The Court’s opinion hinged, however, on the fact that women would still have access to such care, which would be covered by their insurance plan rather that their employer. After another three years of litigation and intense lobbying, anti-choice advocates have at long last succeeded in making it possible for employers to entirely cut off their employee’s access to contraceptive coverage, not only because of their religious objections, but now because of their moral objections as well.

In depriving workers and their families of essential health care coverage, the regulation violates both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. By requiring workers to bear the cost of their employer’s religious beliefs, the regulation conflicts with a clear line of Supreme Court cases which hold that where a government-created religious accommodation imposes serious harms on others, it ceases to be a valid protection of personal faith and instead becomes an unconstitutional establishment of religion.

“With these new rules, the federal government is giving the green light to employers to discriminate against their women workers, and those seeking access to reproductive care, in the name of religious liberty or individual moral belief,” said Katherine Franke, Sulzbacher Professor of Law at Columbia Law School and Faculty Director of the Public Rights/Private Conscience Project. “The fundamental health care needs of working women are now held hostage by right wing interest groups,” Franke concluded.

As PRPCP’s Racial Justice Program (RJP) has noted in the past, these types of rules have an especially devastating impact on women of color. Women of color have higher unintended pregnancy rates than their white counterparts and face increasing difficulties in accessing care. Eliminating these disparities requires increasing access to contraception and family planning resources, which allow women of color to plan whether and when they have a child, which research has shown provides them with greater financial stability and freedom. “Research shows that teen pregnancy rates have dropped to an all-time low in recent years due to increased access to affordable, quality contraception and education about family planning,” said Kira Shepherd, Director of PRPCP’s Racial Justice Program. “Native Americans, Black communities and Latinas, who have the highest teen pregnancy rates of all communities, stand to be harmed the most by these new rules, which limit young women’s and people’s ability to make informed choices about their reproductive health and lives. Here, the Trump administration has once again shown that it cares little about the health and wellbeing of communities of color.”

“President Trump’s repeated efforts to ban immigration from majority-Muslim countries—which a circuit court said drips ‘with religious intolerance, animus, and discrimination’—demonstrate that the administration is not concerned with protecting religious freedom for everyone,” said Elizabeth Reiner Platt, Director of PRPCP. “These rules are just another demonstration of the ongoing effort to push conservative religious beliefs about sex, marriage, and reproduction onto others who do not share those beliefs.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-ACA-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

 

Michigan Lawsuit Challenges Constitutionality of Religious-Based Discrimination by Child Welfare Agencies

Cross-posted to Medium.com

Last week, the ACLU filed a lawsuit in Michigan challenging a set of laws passed in 2015 that enable state-funded child welfare organizations to discriminate against prospective parents and children on the basis of the organization’s “sincerely held religious beliefs.” This case is one of the first to challenge a growing number of similar state laws that have passed recently. Specifically, Michigan’s laws state that “a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” In practice, faith-based service providers have been legally emboldened to deny adoptive and foster care opportunities to same-sex couples, including two sets of plaintiffs in the suit. The laws also seem to allow the child placement organizations to discriminate against other groups whose lives may not comport with the organization’s religious beliefs, including single or unmarried parents, LGBTQ youth under agency care, and those who subscribe to religious tenets that the organization does not support.

Michigan, like many other states, outsources child welfare services to private organizations through contracts and grants using taxpayer money. These organizations have significant responsibilities that the state would otherwise be obligated to undertake—including caring for and finding homes for children currently in state custody. Faith-based organizations make up nearly half of the agencies Michigan contracts with to do this work.

Legal and Constitutional Challenges

While the complaint does not challenge a privately funded agency’s right to place or care for children in accordance with their religious beliefs, the ACLU argues that because Michigan contracts with private agencies to provide services for children in state custody—and pays them with taxpayer funds—those agencies must meet the same legal and constitutional obligations as the state.

 In its complaint, the ACLU raises two important constitutional claims. First, they argue that Michigan’s actions violate the Establishment Clause of the First Amendment, which mandates a separation between church and state and thus bars the state from providing or refusing to provide government services based on religious criteria. They also argue that the Establishment Clause prohibits the state from “delegating a government function to religious organizations and then allowing those organizations to perform that government function pursuant to religious criteria,” which is exactly what these agencies are doing by denying services to same-sex couples based on religious belief. The ACLU also argues that the laws violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits the state from discriminating on the basis of sexual orientation through “instrumentalities of the state.” In this case, because the faith-based organizations receive state funds specifically to provide the services in question, they qualify as instrumentalities of the state. Finally, the complaint alleges that the Michigan Department of Health and Human Services (DHHS), one of two agencies named in the lawsuit, is violating its own nondiscrimination protections by knowingly allowing child placing agencies to discriminate. DHHS’s Adoption Program Statement, also known as Publication 225, dictates that the department “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.”

National Trends and Significance

The stakes in Michigan, and nationally, are significant. Michigan currently has 13,000 children in the foster care system, many of whom will wait years to find a family or will age out of the system without having been placed with one. This past year, Alabama, South Dakota and Texas passed similar laws, adding to the three states—North Dakota, Virginia, and Mississippi—that have already passed related laws.

Building off momentum in the states, Congress introduced the Child Welfare Provider Inclusion Act of 2017 (CWPIA) this year. Under that law, the federal government could withhold federal child welfare funds to states that choose not to contract with faith-based organizations, even if states terminate those contracts because the organizations have engaged in unlawful discrimination. If passed, CWPIA would put millions of dollars in federal funding at risk and make thousands of vulnerable children in foster and adoptive care even more vulnerable. Beyond the child welfare context, the Trump administration announced earlier this year that it will re-evaluate protocols and obligations for distributing federal funds to faith-based organizations across all federal agencies, likely resulting in significant consequences for a range of marginalized communities.

These child placement laws are part of national strategy adopted by faith-based organizations and national Christian Right organizations, including the Alliance Defending Freedom, to frame standard government oversight and enforcement of nondiscrimination protections as “discrimination”—not only in the child welfare context, but also where individuals and groups seek access to affirming healthcare, social services, education, housing, and employment. It is vital that advocates continue to challenge this problematic frame—in order to ensure that new and decades-old civil rights and nondiscrimination protections are not entirely nullified because legislatures are invested in giving unconstitutional supremacy to individual religious beliefs over all other rights. The Constitution requires that a proper balance be struck between individual religious beliefs and other fundamental guarantees under the Constitution—particularly where the government is instrumental in funding or facilitating discrimination.

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others

Cross-posted on Medium.

Last week, Attorney General Jeff Sessions gave a closed-press speech at a summit hosted by the Alliance Defending Freedom (ADF), a group that has notoriously fought to undermine LGBTQ and reproductive rights for years under the guise of protecting religious freedom. Among other concerning statements, Sessions promised that he would soon issue guidance for all federal agencies to implement President Trump’s recently enacted “religious freedom” executive order:

The department is finalizing this guidance, and I will soon issue it. The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason. That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law. If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.

Given Sessions’ skewed prioritization of some, but not all, “religious liberty” rights over other fundamental equality guarantees under the Constitution, there is good reason to be concerned about the potential impact on LGBTQ and others, particularly Muslim communities, women, people of color, and those seeking access to reproductive healthcare.

As we discussed in our report Church, State and the Trump Administration, before taking office, Sessions made a career fighting against justice and equality for marginalized communities, including LGBTQ communities. While in the Senate, he voted against the Employment Non-Discrimination Act (ENDA), which would have protected workers nationwide from discrimination on the basis of sexual orientation. He called the Supreme Court’s decision in Obergefell v. Hodges, which found that the Fourteenth Amendment guarantees a right to marry for same-sex couples, “unconstitutional,” and “beyond what [he] considers to be the realm of reality.” He has also publicly opposed protecting LGBTQ people in federal hate crimes legislation and the Violence Against Women Act, voting against both bills while in the Senate. And when the reauthorization of the Runaway and Homeless Youth Act came up for a vote, he opposed that too, claiming that explicit protections for vulnerable LGBTQ youth meant it “could have discriminated against faith-based organizations.”

Furthermore, Sessions supported the First Amendment Defense Act (FADA) as an original co-sponsor. FADA would forbid the federal government from enforcing a wide range of health, benefits, and antidiscrimination laws against individuals and businesses who act on “a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” This could lead to sweeping discrimination against LGBTQ people and anyone who has had sex outside of a different-sex marriage, including unmarried pregnant and parenting women. As we’ve noted in a previous report, these types of exemptions have a serious and disproportionate impact on women and pregnant people of color.

Although no information has been leaked about the pending guidance, Trump’s previously leaked Executive Order, which was significantly longer than the one he ultimately issued, may provide some insight into what the guidance may prioritize. As we discussed in a report focusing on the potential consequences of the leaked Executive Order, this could include a range of harmful outcomes, including broad exemptions that would allow private and nonprofit organizations that contract with the federal government to violate federal civil rights and nondiscrimination laws in providing social services, educational opportunities, healthcare, employment or other services—with impunity.

If Sessions’ actions in the Department of Justice are any indication, the guidance is likely to create broad opportunities for agencies across the federal government to roll back Obama-era civil rights protections and other important constitutional guarantees, using “religious freedom” as a cover.

 

What’s So Troubling About Funding a Playground? How Trinity Lutheran Undermines the First Amendment

Cross-posted to ReligionDispatches and Medium.

On Monday, the Supreme Court took a dramatically new approach to the First Amendment, though you wouldn’t have known it from reading the brief, oversimplified opinion. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court held that—at least in some circumstances—the Free Exercise Clause of the First Amendment requires governments to provide taxpayer funds to churches. This newfound requirement is something the dissent argued should, in fact, be prohibited under the First Amendment’s Establishment Clause.

I have previously written about the facts of Trinity Lutheran, as has RD, but they warrant a brief revisiting here. A Missouri state program offered grants for a limited number of nonprofit schools and daycares to purchase rubber playground surfaces made from recycled tires. Prospective grantees were evaluated and selected based on a number of factors, including poverty level of the surrounding area and their willingness to generate media exposure for Missouri. In 2012, Trinity Lutheran, a Missouri Synod congregation, applied for the grant to renovate the playground of a preschool owned and operated by the church. While it ranked highly, Trinity Lutheran was denied the grant because of a department policy that made houses of worship ineligible for funds. Upon learning the reason for their denial, Trinity Lutheran sued, arguing that the department policy violated their religious rights.

Typically, First Amendment cases involving government funding of religious organizations present Establishment Clause questions—with plaintiffs arguing that the state is prohibited from providing taxpayer money to a church. In fact, the Court has long held that it is unconstitutional for governments to directly subsidize religious activities. Trinity Lutheran, in contrast, asked whether the denial of funds to houses of worship may also be unconstitutional.

Shockingly, the court answered in the affirmative, finding that the Missouri policy violated Trinity Lutheran’s free exercise rights by forcing the church to choose between its religious identity and participation in a government benefit program. In an opinion by Chief Justice Roberts, the Court held “the Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court further held that Missouri’s stated reason for the policy—to avoid potential Establishment Clause violations—was insufficient.

The Court’s opinion stands in stark opposition to earlier religious funding decisions, and especially its 2004 opinion in Locke v. Davey. In Locke, the Court upheld a state scholarship program that prohibited recipients from using the funds to pursue a degree in devotional theology. The Court attempted to distinguish Trinity Lutheran from Locke by relying on a distinction between religious identity and religious activities. It explained, “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

How government agencies administering grant programs are expected to distinguish between a house of worship’s religious identity and its religious activities is a spectacularly difficult (if not impossible) task that’s entirely ignored by the Court. Making such a distinction is now constitutionally essential, however, as programs must navigate between not funding religious activities, lest they violate the Establishment Clause, and not “discriminating” against religious institutions, lest they violate the Free Exercise Clause. Previously, state programs could safely avoid such perilous questions by simply declining to fund houses of worship. Trinity Lutheran throws such policies into question—although the scope of the ruling is unclear. (More on that later.)

Both Justice Gorsuch in concurrence and Justice Sotomayor in dissent criticized the majority’s attempt to create a line between religious identity and activities, though they ultimately arrive at opposing conclusions. Gorsuch asked, “Can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? Or was it a religious student who wanted the necessary education for his chosen vocation?).”

Similarly, in her Trinity Lutheran dissent, Sotomayor wrote, “the Church has a religious mission, one that it pursues through the [preschool]. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” But while Gorsuch’s opinion suggests that he would support even direct state subsidization of religious activities, Sotomayor argued that directly subsidizing a house of worship—even for ostensibly non-religious expenses such as playground surfaces—is proscribed by the Establishment Clause.

It’s notable that the Court has previously declined to require religious organizations to distinguish between their religious and secular activities. A 1987 decision, Corporation of the Presiding Bishop v. Amos, involved an Establishment Clause challenge to a religious exemption that permitted religious organizations to hire employees based on their faith, even for secular jobs such as janitorial work. The plaintiff in that case argued that while the exemption was justified for employees with religious duties, it was unconstitutional when applied to employees with purely secular jobs.

The Court disagreed, finding that creating such a constitutional line would be untenable. It held, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one.” Thus, the Amos Court declined to adopt a constitutional bright line between religious and secular activities in order to grant religious organizations advantageous exemptions. However in Trinity Lutheran, it relies on precisely such a distinction in order to permit (indeed, require) state funding of houses of worship.

As a more general matter, it is suspect that the majority opinion decries treating houses of worship as different from secular organizations, when the Court has repeatedly relied on this difference to grant exemptions to faith-based organizations that are unavailable to secular nonprofits. As Justice Sotomayor explains, “the government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

The only saving grace (so to speak) of the opinion is buried in a footnote, though how lower courts will interpret both its weight and substance is unclear. The footnote states, “this case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Two of the six justices who signed the majority opinion—Gorsuch and Thomas—dissented from the footnote, though Justice Breyer, who concurred only in the judgment, appears to support it.

More importantly, it’s far from clear how literally to interpret the footnote’s apparent attempt to confine the decision exclusively to programs involving playground resurfacing. Justice Gorsuch explained in his concurrence that lower courts might (in his view, mistakenly,) “read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in . . . the Court’s opinion.” While this narrow reading of the case would limit the damage it inflicts on the Establishment Clause, it seems likely that at least some courts will interpret the decision far more broadly, and sanction a variety of programs providing direct funding to houses of worship.

Regardless of how the footnote is interpreted, the Court’s opinion in Trinity Lutheran demonstrates a fundamental misunderstanding of the purpose of the religion clauses, and effectively ignores the danger of using public coffers to subsidize houses of worship.  The majority describes this as a case about religious discrimination, which demonstrates how successful the religious right has been at rebranding nearly any attempt to enforce the Establishment Clause as a form of religious persecution. Declining to divert public money to churches has long been considered necessary to protect the individual right of conscience of the citizenry. Far from being discriminatory, separation of church and state is intended to ensure that individuals may choose to adhere to any or no religious beliefs free from coercion, and that the church itself is protected from government intrusion. The majority opinion ignores the long history of and important justifications for prohibiting state subsidization of houses of worship. Hopefully, its damage will be confined to the unusually sympathetic facts of this case.