Will a Legal Clash over Old Auto Tires Run Over the First Amendment?

A DISPUTE OVER A RECYCLED TIRE program in Missouri could erode the wall of separation between church and state and compel millions of Americans to support religious institutions against their will.

The U.S. Supreme Court in January announced that during its 2016-17 term it will hear a case titled Trinity Lutheran Church v. Pauley. At first glance, the case sounds esoteric and pedestrian: the church, located in Columbia, sought a grant from the state to resurface a playground attached to its religious preschool with a rubberized compound made of shredded automobile tires. State officials, citing a provision in the Missouri Constitution that bars tax aid to religious institutions, denied the grant.

The church, backed by the large religious right legal group Alliance Defending Freedom (ADF), sued. Two federal courts rejected the lawsuit, but ADF asked the high court to hear the case, and the justices agreed.

This is a troubling development. There’s simply no good reason for the Supreme Court to hear this case—unless the faction that opposes church-state separation believes it has the votes to weaken precedent and fashion new rules concerning religious groups’ access to tax aid.

The ruling could reach well beyond Missouri. Many states, more than thirty-five by some counts, have constitutional provisions that bar the diversion of public funds to sectarian institutions. ADF and other religious right groups argue that these provisions were motivated by anti-Catholic bias rooted in the late nineteenth century.

That’s simply not true. In fact, many of the provisions reflect a longstanding concern that no one should be compelled to support a religious ministry against his or her will. The belief that houses of worship should pay their own way and not lean on the public for support was shared by founders like Thomas Jefferson and James Madison. It has a long history in the United States.

Madison in 1785 penned a document known as the “Memorial and Remonstrance Against Religious Assessments.” It’s a list of fifteen reasons why church taxes are wrong. At the time Madison wrote it, no one was talking about diverting public aid to Catholic institutions because there weren’t many Catholics in the new country; it was Protestant churches that were seeking to raid the public purse.

Furthermore, the provisions found in the state constitutions bar tax aid to all religious groups. Yes, Catholic institutions are barred from receiving taxpayer support, but so are Protestant, Jewish, Islamic, Hindu, and other groups. The denial of aid is neutral and treats all religious groups equally.

Nevertheless, the Supreme Court, prodded by the religious right, could hand down a decision that hampers the states’ efforts to enforce these provisions. If that happens, houses of worship, ministries, and other purely religious entities could not only be permitted to take part in some taxpayer-funded programs, but they could have a legal right to demand such assistance in some circumstances.

For years, some opponents of church-state separation have sought a legal blessing for what they call “non-preferentialism.” The theory behind non-preferentialism is that government can (and in some cases, must) dole out aid to religious groups on an equal basis.

A moment’s thought demonstrates the many flaws of non-preferentialism. In a country where most people are Christian, it’s inevitable that most of the tax aid will end up in those churches. What will happen when a religious group with controversial views demands its slice of the tax pie? In a time of austerity, can the taxpayer realistically be expected to pony up for every group that wants some help?

But the largest flaw in this scheme is that it’s completely and utterly alien to our nation’s historical and legal traditions. The U.S. vision of religious liberty has always rested on the premise that houses of worship would rely on voluntary contributions, not tax support, for their existence. Compelled support for religion was seen as a great evil that had to be eradicated—not to destroy religion but to protect it and the fundamental right of conscience. Jefferson, Madison, and dissenting clergy worked hard to end mandatory tax support for Christian churches in Virginia, and Madison later took that battle to the national stage when he helped draft the First Amendment.

The founders consciously rejected a European model of church-state relations that, for hundreds of years, had spawned violence and oppression in many nations. They wanted none of that on U.S. shores. In the United States, houses of worship would stand on their own feet or not stand at all.

Ironically, religious right groups, the Roman Catholic bishops, and the legal advocates of non-preferentialism are advocating for what the founders specifically rejected: a European model of church-state relations. Here’s even more irony: that model has pretty much killed off religion in many of those countries. Church attendance rates in Scandinavia and much of Western Europe are anemic. Scholars debate why this happened, but the tendency of churches to raid the taxpayers’ wallets can’t have helped. People stopped digging deep in their pockets to support houses of worship when they were being taxed to do it. Pretty soon they stopped even showing up.

Many European churches still perform ceremonial functions. Their clergy put on a good show when there’s a royal wedding or a state funeral, but few people look to them for an authentic spiritual experience. They are perceived as the neutered house pets of the government, well trained and docile. They know their place.

Is this the religious experience the religious right wants for the United States of America? I doubt it, but it’s the one they’re helping to usher in.

During his presidency, Madison was presented with a bill Congress had passed that would have awarded some surplus federal land to a church in Mississippi. He vetoed it. In a message to Congress, Madison said he acted because “the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that ‘Congress shall make no law respecting a religious establishment.’”

There, from the “Father of the Constitution” himself, comes the original vision of the proper relationship between religious institutions and taxpayer aid—in short, they don’t get any. This model has worked well for more than 200 years and has led to a vibrant, diverse religious community in the United States.

Sadly, that may not be enough to prevent radicals on the high court from blithely tossing it aside like a worn tire.