By Heather L. Weaver, Senior Staff Attorney, ACLU Program on Freedom of Religion and Belief

Abandoning a longstanding constitutional protection for the separation of church and state, the Supreme Court ruled earlier this week that a church must be allowed to participate in a state program that provides direct taxpayer grants to improve school playground surfaces. The decision was very troubling. As we argued in our friend-of-the-court brief in the case, Trinity Lutheran v. Comer, the government should not be funneling public funds directly to churches or other houses of worship, for any reason. Period.
Those who support government funding of religion are rejoicing over the ruling, eager to secure public dollars for a variety of religious purposes, including school vouchers that are barred under many state constitutions. But lawmakers shouldn’t take out their checkbooks just yet. As troubling as Monday’s decision was for the separation of church and state, it was based on explicitly narrow grounds. The court went out of its way to note that the ruling applies only to “express discrimination based on religious identity with respect to playground resurfacing,” which the court appeared to view as a secular use of funds.
The decision did not address — and thus left in place — other restrictions on public funding of religion, including what the court characterized as “religious uses of funding,” which have long been prohibited by the Establishment Clause of the First Amendment. The court also affirmed that it is still proper for states to take into account the proposed use for government funds when awarding them. A state may still, for instance, enforce its state constitutional provisions protecting the separation of church and state by declining to provide taxpayer dollars for the training of ministers, even as part of a broader grant program.
In a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, argued that court should have gone further by holding that the First Amendment requires houses of worship and other religious institutions to be eligible for government funding programs regardless of whether the funds will be put to “religious uses.” The other seven justices, however, did not subscribe to this view, which would overturn longstanding precedent on this issue and completely upend — even more so than Monday’s decision — the First Amendment’s delicate balance between safeguarding the free exercise of religion while also protecting against its establishment.
Yesterday, in light of the Trinity Lutheran decision, the Supreme Court also vacated and remanded several state supreme court decisions pertaining to government funding of religious institutions, including a 2015 victory by the ACLU and allies against a Colorado school voucher program. Although the Supreme Court sent those cases back to the state courts for further consideration, it routinely takes this approach when it issues an opinion addressing an issue that relates to existing litigation. It gives the lower courts the first opportunity to determine what effect, if any, recent rulings may have on the case. But it doesn’t affect the limited nature of the Trinity Lutheran decision itself. The Colorado Constitution, for example, prohibits public funds from being used for religious purposes, directly or indirectly. School vouchers, which will fund religious education and indoctrination, as well as religious discrimination against students, plainly violate that provision. Nothing in the Trinity Lutheran decision requires the Colorado courts to abandon the state’s long history of protecting against the use of taxpayer money for such purposes.
While Monday’s narrow ruling does not provide a broad authorization for government funding of religion, it is nevertheless a stark warning for those of us who value the Constitution’s abiding protection for the separation of church and state. As Justice Sonia Sotomayor wisely cautioned in her forceful dissent, whatever one thinks of the outcome in Trinity Lutheran, the real concern is “what it might enable tomorrow.” Never before has the court held that the government may provide direct cash aid to a church. If the court is willing to cross that constitutional line here, it does not bode well for upholding other Establishment Clause principles in the future.
This post originally appeared on ACLU National's Speak Freely blog:  https://www.aclu.org/blog/speak-freely/supreme-courts-troubling-decision-funding-church-playgrounds

WASHINGTON — The Supreme Court today announced it will review a decision from the Colorado Court of Appeals that found that a cake shop discriminated against a same-sex couple by refusing to sell them a wedding cake. 

In 2012, Colorado residents David Mullins and Charlie Craig visited Masterpiece Cakeshop to order a wedding cake.  Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home. Masterpiece owner Jack Phillips informed the couple that, because of his religious beliefs, it was his standard business practice to refuse to provide cakes for same-sex weddings. Phillips had turned away several other couples for the same reason.

“This has always been about more than a cake. Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love,” said Mullins. His husband, Craig, added, “While we’re disappointed that the courts continue debating the simple question of whether LGBT people deserve to be treated like everyone else, we hope that our case helps ensure that no one has to experience being turned away simply because of who they are.”

The American Civil Liberties Union and ACLU of Colorado represent Mullins and Craig in the case.  Under Colorado law, businesses open to the public, including the Cakeshop, may not refuse service based on factors including race, sex, national origin, or sexual orientation.

“The law is squarely on Dave and Charlie’s side because when businesses are open to the public, they’re supposed to be open to everyone,” said James Esseks, director of the ACLU’s LGBT Project. “While the right to one’s religious beliefs is fundamental, a license to discriminate is not.  Same-sex couples like Dave and Charlie deserve to be treated with the same dignity and respect as anyone else, and we’re ready to take that fight all the way to the Supreme Court.“

more on this case

DENVER – Following one of the most productive legislative sessions in recent history for civil liberties, lawmakers from both parties received generally high marks on the ACLU of Colorado Legislative Scorecard, which was released this morning.
Fifty of Colorado’s 100 lawmakers scored a perfect 100% and 58 scored 80% or higher on the scorecard, which is based on votes on seven bills that were selected as the best representation of the civil liberties issues facing Colorado today.
Five bills supported by the ACLU of Colorado, ranging in topic from campus free speech to juvenile justice to civil asset forfeiture reform, all passed with the support of more than 70 legislators and are now law.
“Colorado lawmakers put aside partisan differences and came together to advance multiple policies that strengthen civil liberties in 2017, whether it was protecting young people and staff in juvenile corrections, reining in civil asset forfeiture, making birth control more accessible, or ensuring that college campuses are open to all opinions and viewpoints,” said ACLU of Colorado Policy Director Denise Maes.  “There are still areas to keep moving forward, particularly around criminal justice and homeless rights, and unfortunately, attacks against women, immigrants, and the LGBT community persist, but overall, 2017 was a highly-productive and cooperative session with a lot of progress to build on.”
Along with the five successful bills, the ACLU also scored a Senate vote on a bill to require ultrasounds and a waiting period for women seeking an abortion. The ACLU opposed the bill, and the Senate rejected it on a bipartisan 19-16 vote.
The scorecard also includes a House vote on HB 1230, an ACLU-supported bill to protect Colorado residents from unconstitutional or discriminatory policies from the federal government.  The bill passed the House, but was defeated in a Senate committee before it could be considered by the full chamber.
The ACLU of Colorado supported, opposed, or monitored more than 100 pieces of legislation during the 2017 session.  As a practice, the ACLU only scores bills that are voted on by all members of at least one chamber.  This prevented the scoring of several bills that the ACLU of Colorado supported, like the Right to Rest Act and repeal of the death penalty, that were defeated on committee votes.
The bills included in the 2017 ACLU of Colorado Scorecard are:
HB 1162 - Outstanding Judgments and Driver’s Licenses.  This bill decriminalizes the offense of “Driving Under Revocation” when a person’s driving license was canceled because they could not pay a ticket, so that jail time is no longer a penalty.  HB 1162 passed 79-21 and was signed on May 18.
HB 1186 - Health Coverage Prescription Contraceptives Supply. This bill gives women access to a longer supply of birth control by requiring insurers to cover a 12-month supply of prescription contraceptives.  HB 1186 passed 72-25 and was signed on June 5.
HB 1313 - Civil Forfeiture Reform. This bill mandates greater transparency and accountability in civil asset forfeiture, by requiring reporting of all actions that result in seizures and limiting the use of federal seizure law to property valued over $50,000. HB 1313 passed 81-19 and was signed on June 9.
HB 1329 - Reform Division of Youth Corrections. This bill refocuses the mission of the Division of Youth Corrections as rehabilitative, renaming it the Division of Youth Services. The bill also requires that the Division retain an outside consultant to evaluate all Division facilities and, together with the Division, develop a pilot program that relies on non-punitive approaches to caring for kids. HB 1329 passed 86-14 and was signed on June 6.
SB 062 - Student Free Speech Public Higher Education Campuses. This bill protects free speech on college campuses, by prohibiting public institutions of higher education from limiting or restricting lawful student expression in a student forum. SB 062 passed 99-0 and was signed on April 4.
SB 284 - A Woman’s Right to Accurate Health Care Information (Senate only). This bill would have mandated ultrasounds and a waiting period for women seeking an abortion. SB 284 was voted down 19-16 by the Senate.
HB 1230 - Protect Colorado Residents from Federal Government Overreach (House only). This bill intended to protect the rights of all Coloradans by ensuring that our state is not forced to participate in any federal government overreach, like religious registries, internment camps, or attempts to identify individuals by their race, religion, or nationality. HB 1230 passed the House, but was defeated by a 3 to 2 vote in the Senate Judiciary Committee.
View the 2017 ACLU of Colorado Legislative Scorecard:
https://aclu-co.org/sites/default/files/wp-content/uploads/2017/06/2017LEGSCWEB.pdf