Where does establishing end, and prohibiting begin?
That, essentially, is the question the U.S. Supreme Court will answer in the case of Trinity Lutheran Church of Columbia v. Comer, which the high court will hear on April 19. It is likely the most important religious freedom case before the court this term, made even more significant by it being one of the first oral arguments in which newly minted Supreme Court Justice Neil Gorsuch will participate.
The First Amendment charges Congress—and, by incorporation, the states—to “make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But what to do when, in the normal course of their activities in the public square, citizens of one religious faith are shunned from participating in a public benefit offered to everyone?
This is not a case about the too-often erroneous interpretation that the First Amendment’s establishment clause trumps its free exercise clause—that government must always err on the side of treating religious groups like asbestos in the ceiling tiles of society. The two are not in conflict: “Not establishing” doesn’t mean “actively opposing” or that government must deny religious groups even secular public benefits available to everyone in order to not “establish” religion..
