The government in the Trinity Lutheran religious liberty Supreme Court case tried to have it both ways. They assured the Court there was no establishment clause violation with their program, but then argued they excluded the school in this case to avoid an apparently non-existent violation. Here’s Chief Justice Roberts and the attorney for the state:
[Audio Clip] Chief Justice John Roberts: The entire basis for your rule is that you’re afraid of violating the establishment clause even though you’re sure there’s no violation of the establishment clause?
[Audio Clip] Attorney James Layton: No. I … It is that we do not want to come to the edge of violating the establishment clause.
You heard that right, the government knows it’s not establishing a religion by giving safety materials to this religious school. Yet it still feels it can discriminate against them.
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