Liberties Reporting on First Amendment freedoms

No faith in stained glass window funds?

Religious Liberty | Massachusetts taxpayers challenge a city grant to restore an active church’s historic stained glass windows
by Leigh Jones
Posted 9/12/17, 12:10 pm

Should a Massachusetts church be eligible for public preservation grants to help restore its historic stained glass windows?

The City of Acton thinks so and awarded Acton Congregational Church $100,000 under its Community Preservation Act. But a group of taxpayers sued, claiming the grant violates the Massachusetts Constitution’s ban on using public money to benefit religious institutions. The state’s Supreme Judicial Court heard arguments in the case last week and will issue a ruling in the next few months. 

Douglas Mishkin, the plaintiffs’ attorney, told justices the church could legitimately apply for the funds if it didn’t have an active congregation. He pointed to Old North Church, one of Boston’s most visited historic sites, as an example of a legitimate preservation fund recipient.

But one of the court’s justices noted that Old North Church still holds religious services. Justice Elspeth Cypher asked, if active congregants are involved, don’t such grants still aid the church?

Massachusetts already has funded more than 300 restoration projects involving religious institutions, but the justices questioned whether continuing to do so would spark discrimination claims. Groups with buildings deemed not “validly historic” might protest their lack of state funding.

“Are we getting an excessive entanglement of church and state here?” Justice Scott Kafker asked.

The answer to that question could come from the U.S. Supreme Court, which issued a decision in a similar case earlier this year. In Trinity Lutheran v. Comer, the high court ruled a Missouri church that operates a preschool could not be excluded from a program providing rubber from recycled tires for playground resurfacing. The ruling, hailed by religious liberty advocates, opened the door for some, although not all, public benefits for churches.

Chief Justice John Roberts called the state’s decision to exclude Trinity Lutheran from the grant program “odious to our Constitution.”

In a commentary following the Trinity Lutheran decision, Emilie Kao with The Heritage Foundation noted the federal government didn’t discriminate against churches in offering security grants after 9/11 or against religious schools after mass shooting events at Columbine High School and Sandy Hook Elementary. She also cited asbestos abatement programs open to religious schools as an example of a public benefit available regardless of faith.

“When the government announces competitive programs to the public, including to improve public health, safety, and security, it must allow religious communities to compete on the basis of merit for those benefits,” Kao wrote. “It is an unconstitutional violation of religious freedom to pressure religious communities to renounce their beliefs by threatening to exclude them from competition.”

During last week’s oral arguments in Massachusetts, Nina Pickering-Cook, an attorney for Acton, said the building’s owner shouldn’t matter, since the state’s interest is in preserving historic structures: “The only thing that makes the use of funds here religious is the ownership.”

The Becket Fund for Religious Liberty filed a friend-of-the-court brief in the case, and attorney Joseph Davis noted the plaintiffs went to great lengths to defend their position: “They even attacked church steeples in the town’s skyline as somehow inherently ‘troubling.’ But Acton has had it right all along: Historic church buildings are an important part of our history and they should be preserved for generations to come.” —Leigh Jones

Becket Fund Becket Fund Hi-Way Tabernacle’s flooded sanctuary in Cleveland, Texas

FEMA leaves churches to beg for relief

In another case involving church access to government funds, lawyers for three churches in Texas that were denied relief dollars after flooding from the remnants of Hurricane Harvey say the Trinity Lutheran ruling also sets a precedent for their clients.

Harvest Family Church, Hi-Way Tabernacle, and Rockport First Assembly of God all suffered damage from the devastating late-August storm, and all applied for recovery funds from the Federal Emergency Management Agency (FEMA). The federal agency denied their requests because it doesn’t give funds to religious organizations.

“But for their religious usage, all three of the churches’ buildings would be eligible for FEMA disaster relief grants,” stated a lawsuit filed on the churches’ behalf by the Becket Fund for Religious Liberty. The denial keeps with a longstanding policy at FEMA—one lawyers for the churches say should change since this year’s landmark Supreme Court ruling.

President Donald Trump agrees, according to a tweet he posted Friday: “Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).”

In Trinity Lutheran, the justices disagreed on how the precedent would extend to future cases. Justice Stephen Breyer concurred with the majority opinion but wrote that the discrimination the court identified applied only “to playground resurfacing.” Justice Neil Gorsuch called for a broader interpretation, though, saying it shouldn’t matter whether the aid is used for religious or non-religious purposes. —Lynde Langdon

Associated Press/Photo by Cliff Owen (file) Associated Press/Photo by Cliff Owen (file) Sen. Dianne Feinstein

‘A condition we call faith’

Another one of President Donald Trump’s nominees faced a Senate grilling over religious beliefs last week, a worrying precedent for religious liberty advocates. Trump nominated Amy Coney Barrett, a Notre Dame law professor and devout Catholic, to serve on the 7th U.S. Circuit Court of Appeals. During Barrett’s confirmation hearing Wednesday, Sen. Dianne Feinstein of California led her fellow Democrats in an inquisition of the nominee’s beliefs, questioning whether they would prevent her from ruling fairly on matters that conflicted with her faith. “Dogma lives loudly within you,” Feinstein told Barrett.

This week, Catholic leaders chastised Feinstein and her colleagues for trying to create a religious litmus test for public service. The Rev. John I. Jenkins, president of the University of Notre Dame, urged senators to “respect those in whom ‘dogma lives loudly’—which is a condition we call faith. For the attempt to live such faith while one respects the legal system should command respect, not evoke concern.”

Archbishop William E. Lori, chairman of the United States Conference of Catholic Bishops’ committee on religious liberty, said the senators’ tactics recalled 1960s-era bigotry toward Catholics. “People of faith, whatever faith they may hold, should not be disqualified because of that faith from serving the public good,” he said.

While a law student in 1998, Barrett co-authored a law review article that said Catholic judges should recuse themselves from cases in which the Church’s teaching conflicts with the law. During her confirmation hearing, Barrett said the article’s main premise stated judges should never “follow their personal convictions in the decision of a case, rather than what the law requires.” She also said she could think of no case or category of cases in which she would feel obligated to recuse herself.

Barrett is the second Trump nominee to endure an interrogation about faith. In June, Sen. Bernie Sanders, I-Vt., castigated Russell Vought over a blog post about Muslims “standing condemned” because they don’t know Jesus. Sanders called Vought, nominated for deputy director of the White House Office of Management and Budget, “not someone who this country is supposed to be about.” Both conservative and liberal critics said Sanders came too close to attempting to impose a religious test for holding public office. —L.J.

Appeals court blesses lawmakers’ prayers

The 6th U.S. Circuit Court of Appeals ruled this week in favor of county commissioners in Michigan who were sued for offering prayers before their monthly meetings. The Jackson County Board of Commissioners, like many other local governing bodies, begins its meetings with prayer and the Pledge of Allegiance. But instead of inviting a member of the clergy to give the invocation, commissioners offer the prayers themselves.

In 2013, activist Peter Bormuth sued, claiming the prayers violated the Establishment Clause of the First Amendment to the U.S. Constitution because the commissioners acted in their official government capacity. A district judge sided with the commissioners, and Bormuth appealed to the 6th Circuit. A three-judge panel overturned the lower court decision in Bormuth’s favor, but when all 15 judges reconsidered the case, they declared the prayers constitutional.

The U.S. Supreme Court has twice given the OK to prayer before legislative meetings. Having the legislators themselves offer the prayers follows a long U.S. tradition, the appeals court noted. “Although the prayers offered before the Board generally espouse the Christian faith, this does not make the practice incompatible with the Establishment Clause,” judges wrote in the majority opinion. “Quite the opposite, the content of the prayers at issue here falls within the religious idiom accepted by our Founders.” And while the almost exclusively Christian prayers reflect the faith of current commission members, the content could change with the next election, judges noted. —L.J.

Trump administration backs Christian bakery

The U.S. Justice Department sided last week with a Christian bakery owner in a watershed religious liberty case. On Thursday, the government filed an amicus brief in support of Lakewood, Colo., baker Jack Phillips’ right to refuse to bake cakes for same-sex weddings. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” the Justice Department brief stated. Phillips has found other friends in Washington: 86 members of Congress, led by Sen. Ted Cruz, R-Texas, signed a separate friend-of-the-court brief filed last week. That brief called the government’s intrusion on Phillips’ rights “un-American and a gross violation of personal liberty.” The Colorado Civil Rights Commission in 2012 found Phillips in violation of an antidiscrimination rule for declining to bake a cake for a same-sex couple’s wedding. The U.S. Supreme Court agreed this year to hear the case, slated for oral arguments in the upcoming session. —L.L.

Leigh Jones

Leigh lives in Houston with her husband and daughter. She is the news editor for The World and Everything in It and reports on education for WORLD Digital.

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  • Fuzzyface
    Posted: Wed, 09/13/2017 11:29 am

    The bigotry of Bernie Sanders and Dianne Feinstein is apauling.  And just think, if it wasn't for the coruption of Hilary Clinton, Bernie could have been our president right now.  Trump is scary.  Bernie and Hillary are even scarier.

  •  Brendan Bossard's picture
    Brendan Bossard
    Posted: Wed, 09/13/2017 09:38 pm

    Article CIII under the Articles of Amendment of the Massachusetts Constitution does prohibit use of public resources to aid any privately run "infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking" except "to carry out legal obligations, if any, already entered into."  I wonder whether the plaintiffs in the Acton case have also sued Acton for funding any of the other types of organizations in the list, and whether Acton has any legal obligation to aid Acton Congregational Church as a historic site.  I suspect no in both cases.