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Join Jim and Greg as they welcome Senate Republicans making their decisions about running in 2022 and with two incumbents deciding to run again, the GOP odds of taking the majority probably improved. They also fume as New York City Mayor Eric Adams decides to support a city council resolution allowing 800,000 non-citizens in the city to vote in municipal elections. And they’re stunned as Supreme Court Justice Sonia Sotomayor claims – in oral arguments – that 100,000 kids are seriously ill with COVID and that many of them are on ventilators. None of that is anywhere close to accurate.
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Jim and Greg offer up three martinis and their tongue-in-cheek analysis of a Christmas tradition their wives greatly enjoy. First, the welcome the news that CNN has suspended Chris Cuomo but wonder if he will end up getting much more than a slap on the wrist. They’re also encouraged by the oral arguments on the Mississippi abortion case at the Supreme Court and hammer Justice Sotomayor for her weak argument about when life begins. They’re less than impressed with the Pennsylvania GOP Senate bid of Dr. Oz. And as December begins, they have plenty to say about the Hallmark Christmas movies that so many women love to watch and so many men have to endure.
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Religious liberty activists are celebrating Monday, after the U.S. Supreme Court ruled decisively in favor of a Missouri church that sued the state, alleging it was wrongfully denied state grant money for a playground upgrade in violation of the free exercise clause of the first amendment.
The 7-2 decision in favor of the church included liberal justices Elena Kagan and Stephen Breyer joining with the four conservative justices and moderate Anthony Kennedy in the majority opinion authored by Chief Justice John Roberts. Justice Sonia Sotomayor wrote a stinging dissent that was joined by Justice Ruth Bader Ginsburg.
Trinity Lutheran Church applied for state funds being offered by the state to upgrade the surface of playgrounds to rubber made from shredded tires. The request was denied by Missouri officials, suggesting the money would constitute state endorsement of of a particular religion or denomination.
Chief Justice Roberts says Missouri held Trinity Lutheran Church to an unconstitutional standard.
“The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny,” wrote Roberts.
“The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. The Department’s policy violates the Free Exercise Clause,” he added.
” [T]he 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. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion,” concluded Roberts
The Alliance Defending Freedom worked with Trinity Lutheran on this case. Senior Vice President of U.S. Legal Advocacy Kristen Waggoner says this was a huge verdict for the cause of religious freedom.
“I think today’s decision is a tremendous day for freedom. The court ruled very clearly that discrimination against people of faith and religious groups is unconstitutional,” said Waggoner.
Waggoner says this was discrimination pure and simple.
“In the text of the law, the state was discriminating against this church because of who it was. The government can’t do that. Neither the establishment clause nor the free exercise clause permit class-based discrimination against people of faith and that’s exactly what this was,” said Waggoner, noting that the state’s argument could be extended to deny fire and police protection from churches.
Liberty Counsel Chairman Mathew Staver says this decision is even more pivotal than that. He says a decision in favor of Missouri would have massive consequences in arenas ranging from education to health care.
“That would mean that vouchers – when parents provide vouchers to a school of their own choice – could be blocked across the country,” said Staver.
“It also could mean that, in fact, hospitals that are religiously affiliated, particularly those that are affiliated with churches…could be disqualified from treating Medicaid and Medicare patients for the same reason,” said Staver. “The good news is that’s not the direction the court went.”
Waggoner sees Monday’s decision as a ray of sunshine after what she sees as a long string of high court rulings against religious and she hopes a new trend is beginning.
“Over the course of the last two years, we’ve seen a number of bad laws and bad lower court rulings that have eroded our freedoms. Today’s decision, I think, that that pendulum is swing back towards freedom, which benefits everyone,” said Waggoner.
She also says the gravity of this decision can be seen in the intensity of Sotomayor’s dissent.
“This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” wrote Sotomayor.
“Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” she added.
Staver says Sotomayor has a wrong understanding of history and of the Constitution.
“The intent of the Constitution never ultimately wanted to put this huge separating wall so that you can’t ever have any interaction. The first amendment is designed to prevent an establishment of religion, a preferential treatment of religion or a religious denomination over another, not equal treatment,” said Staver.
Staver also challenges another assumption Sotomayor made in her dissent.
“Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular,” wrote Sotomayor.
Referencing one of the nation’s early justices, Staver says secularism was never understood to be the posture of government in the early days of the republic .
“Justice Joseph Story said that the first amendment was designed to encourage religion, so far as it’s not incompatible with the rights of conscience. It was designed to prohibit rivalries among denominations …not to remain secular,” said.
Story served on the high court from 1811-1845. Staver says if that’s not an early enough interpretation of the government’s relationship with religion, the founders themselves were pretty clear as well.
“Thomas Jefferson, John Adams, all the founders, they consistently said that the people had to be religious and moral. Therefore, people needed to be taught Christian principles even in the public schools, so they would have a moral people, so that our liberty would be preserved,” said Staver.
“It’s frankly shocking (for Sotomayor) to suggest that this is centuries of history that the government is to remain secular. That’s absolute nonsense,” he added.
Neither Staver nor Waggoner appear concerned about the debate among the more conservative justices about the scope of this ruling. The majority opinion includes a footnote from Roberts that seems to limit the decision to the present circumstances.
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination,” he wrote.
In a concurring opinion, newly-minted Justice Neil Gorsuch acknowledged the specifics of the case but argued that the ruling had farther-reaching impact.
“Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion,” wrote Gorsuch.
“Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations,” he wrote.
Waggoner sees the debate over the footnote as a “red herring” offered up by people looking to diminish the decision. Staver hailed Gorsuch’s approach.
“It is a great opinion by Gorsuch because it shows that he is committed to the original understanding and intent of the Constitution,” said Staver. “I think it really bodes well for the future that we’ve got a great justice who is precise and will be committed to the original understanding of the Constitution,” said Staver.
Both lawyers were also pleased to see the Supreme Court agree to hear to case of Masterpiece Cakeshop v. Colorado Civil Right Commission. It’s at the center of the conscience debate that will set a major precedent in determining whether artistic merchants can decline certain projects if those jobs conflict with their closely held personal beliefs.
Christian vendors declining services for same-sex ceremonies are at the heart of this debate at the moment. Waggoner says that case cuts to the core of freedom in America.
“What we’re finding is that Christians who are in the creative profession are being forced to choose between their professions and their business and their beliefs on marriage,” said Waggoner.
“Every American should be free to choose the art that they create and they shouldn’t fear unjust government punishment for not agreeing with the government’s ideology on any issue, especially marriage between one man and one woman,” said Waggoner.