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by William C. Duncan

At the close of the U.S. Supreme Court’s recent term, the Court issued an important religious liberty decision and announced another decision was likely to come during the next term.

The recent Trinity Lutheran decision involved a Missouri religious preschool that had applied for a grant from the state to upgrade its playground safety equipment. Although the school’s application was rated very highly, the state determined the school was not eligible simply because it was religious. The problem was, the state believed, allowing a religious school to participate in the public program would run counter to a state constitutional amendment prohibiting aid to religion. Missouri’s amendment, along with 39 states who have similar amendments (often referred to as “Blaine Amendments”) were enacted during a time of concern with growing immigration, especially by Catholics, and reflected a bias against institutional churches.

The Supreme Court, in a 7-2 holding, said the state was not free to limit the students eligible for the state’s safety program solely for attending a religious school. Chief Justice John Roberts wrote: “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.”

What’s Coming Next?

The day it issued that decision, the Court also announced it would be hearing a case involving a Colorado bakerThe baker had politely declined to create a special wedding cake for a same-sex wedding.The state’s civil rights office said he had broken the state’s public accommodations law, even though it allowed another baker to refuse to make a cake with a message opposing same-sex marriages. Of course, even a very favorable Supreme Court decision in the Colorado baker case won’t resolve all of the potential infringements on religious liberty.

Other Emerging Religious Liberty cases

  1. A new case is emerging in Michigan, where the city of East Lansing is excluding a family farm from participating in a farmer’s market because they declined to use their property, 22 miles away, for same-sex weddings.
  2. A bill that would drastically limit the ability of religious institutions to ask their employees to abide by their religious teachings has passed one house of the California Legislature.


Where do we go from here?

Legislatures and other policy bodies must act to ensure churches, religiously-motivated nonprofit organizations (like schools), and people of faith have the ability to live consistent with their convictions without fear of punishment from the government.


William C. Duncan is the director of the Marriage Law Foundation and of the Sutherland Institute’s Center for Family and Society. He was previously acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor. He has published numerous articles on constitutional and family law issues in a variety of legal journals.

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