By Craig Gipson and Brian Flagler
Under a recent U.S. Supreme Court decision, religious organizations are now on equal footing with their secular counterparts when seeking certain public benefits. On June 26 the Court decided the case of Trinity Lutheran v. Comer, ruling in favor of a church that was refused funds from a state program to provide safer equipment for children’s playgrounds. Although the state ranked the church near the top of applicants to receive aid, under a provision of the Missouri constitution, the state disqualified the church because of its religious nature. The Court struck down the Missouri provision under the Free Exercise right provided in the U.S. Constitution.
How does the decision affect religious publishers?
For religious non-profit organizations, the decision means equal access to participate in state programs. The National Endowment for the Humanities and state cultural institutions may not refuse otherwise available funds to an organization because of its religious or denominational affiliation. However, the decision emphasizes its prohibition of discrimination based on religious identity versus religious purpose. For example, a state offering a grant to research and publish a non-fiction book may not disqualify a publisher because the publisher is or is a part of a religious non-profit organization (religious identity). But it remains unclear whether the state could refuse the publisher’s application because it proposes to use the funds to publish a book expounding on Christian theology (religious purpose). Contrast this scenario with a state program to preserve published works about the history of a particular geographic area. It is unlikely that a religious publisher (religious identity) applying to the program to preserve books about the religious history of that area (secular purpose) could legally be excluded.
For publishers, the greater implication of the case may be in its application to religious education. Legal scholars are debating the decision’s effect on future litigation involving religious private schools and school choice vouchers. If a state allows parents to direct funds to non-public schools, must it now allow those parents to direct those funds to private Christian schools? If so, private Christian schools may be better equipped to seek new curriculum and resources.
What does the decision indicate for future cases involving religious rights?
Overall, the Court’s rulings this term were favorable to free expression and the public participation of religious individuals and groups. An earlier free speech decision reaffirmed the principle that the government may not judge the value of certain speech merely because it may be offensive to some people or groups; there is no legal category of “hate speech.” This may not insulate publishers from criticism (and worse) for publishing culturally unpopular opinions but there can be no legal repercussions for doing so.
And while some in the religious community hailed the church playground case as a decisive victory for religious liberty against secular cultural pressure, the Court was careful to narrowly define its ruling. When a religious organization is not treated equally with secular groups under a generally applicable regulation, this opinion will level the playing field. But when a religious group or individual seeks an exception from a generally application regulation on the basis of free exercise rights, this case is not likely to offer support.
In the fall, the Court will hear the Masterpiece Cakeshop case—the Colorado baker who refused to create a cake for a same-sex wedding ceremony. In addressing whether there is a religious exception to state non-discrimination laws, the Court’s reasoning, if not the outcome, may look much different. ECPA and Flagler Law Group will continue to track these developments as they impact publishing and religious organizations.
