The framers anticipated Bernie. The “Machiavellian Golden Rule” codified in the Constitution has for two centuries withstood the attempts of factions to benefit from it themselves while violating it for others. The founders discovered a workable way of peacefully arranging this society of religious and anti-religious zealots such that, while no sect gets everything that it wants (to dominate), neither does it get what it doesn’t want (to be suppressed).
On June 26, 2017 the Supreme Court decided the important case of Trinity Lutheran v. Missouri, and did so in a fascinating array of opinions that give intriguing hints of how it will decide cases involving religious freedom in the future.
The case is one in a long line in which the Court has struggled to make sense of the First Amendment. The cases form a tangled web that has left many legal observers unable to discern the course the Court intends to chart. It is possible that the majority intends its opinion to make that course significantly clearer with this decision. Lamentably, it failed to achieve its result.
In the Gulf Kingdom of Bahrain resides a centuries-old tradition of religious coexistence that might help fast-track a new paradigm of respect for the “other” in a deeply troubled region.
By in large, the decision was hailed as a victory for religious liberty by proponents of accomodationist views of the religion clauses, and criticized as a further crumbling of the wall between church and state by those of the separationist school.
Thus, the elephant in the room remains – whether these state law provisions are a legitimate basis for denying religious schools the right to participate in state educational voucher programs.
Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.