Pea gravel. The Supreme Court of the United States this week contemplates a dilemma we should not face in civilized times. Justices will decide whether the same constitution used to protect foreigners from religious-based discrimination might also help American preschoolers avoid injuries on a playground.
In Trinity Lutheran Church of Columbia v. Comer, the court will decide whether Christian children in Missouri should endure dangerous playgrounds because of the religious beliefs of their parents. It is hard to believe this ugly practice of state-mandated, content-based discrimination survived to reach the country's court of last resort.
Imagine if state laws promoted the Ku Klux Klan's fear of immigrants by mandating state discrimination against people on a basis of their religious beliefs. Imagine if states could treat secular people with the favor of financial aid while rejecting others because of their family's religion. These are not hypothetical considerations but the key elements of Trinity v. Comer.
The First Amendment prevents governments from acknowledging or acting on religious content, traditions, practices or beliefs. It says government shall neither make laws respecting establishments of religion nor interfere with the free exercise thereof. On matters of religion, the state shall remain agnostic — effectively blind to the beliefs of individuals and groups. Because of the First Amendment, government should not even concern itself with the religious beliefs of individuals and organizations.
Mostly, government obeys the law. Federal financial aid pays tuition at religious colleges, such as Georgetown, Boston College and Notre Dame. Medicaid, Medicare, Tricare and Obamacare fund health care at religious hospitals. Federal funds pass through battered women shelters and soup kitchens run by churches. A charity's tax status is the same, whether it is affiliated with Catholicism, Judaism or atheism.
The 14th Amendment extends religious liberty to people in all states, counties and municipalities by ensuring "equal protection" of law.
Because of the First and 14th amendments, courts have prevented President Donald Trump from policies that even hint of applying "extreme vetting" to immigrating foreigners from predominantly Islamic countries.
We don't want governments discriminating on a basis of religion any more than we want a return of Jim Crow laws, which state and local governments used to discriminate on a basis of race.
So it is beyond comprehension that Colorado and 37 other states enforce laws that flagrantly violate the U.S. Constitution, continuing a legacy of anti-immigrant, religious-based discrimination that began in the 19th century.
In the 1870s, public fear and anti-Catholic hostility arose against a wave of Irish and other European immigrants. U.S. Rep. James Blaine, a Maine Republican anticipating his run as the party's nominee for president, wanted to capitalize on the anti-immigrant mood by proposing an amendment to the U.S. Constitution in 1875. His idea would prevent taxpayer dollars from going to the Catholic schools immigrants were establishing for their children and other religious institutions.
The U.S. Senate killed Blaine's challenge to the First Amendment. An immigration-weary public invoked states' rights arguments to enact Blaine amendments in Colorado and all but 11 states.
"The laws were pushed by the Ku Klux Klan," explains a 2002 article in The New York Times, which cites legal historian, former Justice Department attorney and Reagan White House adviser Kevin J. "Seamus" Hasson.
Even a modern supporter of Blaine amendments concedes the hateful roots of the laws.
"Some of the people who supported the Blaine Amendment were clearly supporting it out of anti-Catholic animus," said Steven Green, former head of Americans for the Separation of Church and State, in a story The Atlantic published Tuesday.
A Blaine law has been used to prevent Colorado children from using state scholarship vouchers at religious schools, even though the Supreme Court of the United States allowed converted state funds to pay sectarian tuition with its 2002 ruling in Zelman v. Simmons-Harris.
In Trinity v. Comer, Missouri officials openly defend their decision to deprive preschoolers of a safer playground on a basis of their religion.
Trinity Lutheran applied to a state program that assists schools in replacing dangerous surfaces with rubber mesh made from recycled tires. The surfaces are produced by state program designed to remove tires from landfills. Children at Trinity had been injured by pea gravel, so the program was a perfect fit.
When assessed without consideration for religion, the state ranked Trinity's application fifth out of 44. It awarded 14 grants. Missouri's Department of Natural Resources, headed by Carol Comer, bumped Trinity from the list because its religious affiliation violates the Blaine law.
By state mandate in Missouri, children are entitled to more state protection of their safety if their parents enroll them in secular schools. It smacks of government enforcing law on a basis of religion, in direct violation of the First Amendment. It favors secular exercises over religious exercises, which cannot be legal under the U.S. Constitution.
Boulder resident Neil Gorsuch understands religious liberty better than most. He heard this insane case of discrimination during his second day on the Supreme Court. We hope he and a majority of his colleagues exterminate these antiquated, anti-American Blaine amendments just as the court quashed Colorado's anti-gay Amendment 2 and state laws throughout the country that prevented same-sex marriage.
In the United States, we are guaranteed equal protection — even from pea gravel — regardless of race, gender, sexual orientation, nationality or religion.
The Gazette editorial board