//  6/30/17  //  Commentary

By Caroline Mala Corbin, Professor of Law, University of Miami School of Law

In Trinity Lutheran Church v. Comer, the Supreme Court deals a double blow to the Establishment Clause. First, it requires the government to give taxpayer money to churches, eliminating the longstanding ban on direct cash payments to churches. Second, it opens the door to the government favoring some religions over others, thereby undermining another core Establishment Clause prohibition.  

Trinity Lutheran Church applied for a grant to improve its church playground.  Although it met many criteria, the Missouri Department of Natural Resources rejected Trinity Lutheran’s application because Missouri’s Constitution forbade public aid to churches or other houses of worships.  In addition to Missouri’s no-aid constitutional provision, a long line of U.S. Supreme Court precedent barred direct payments from the government to churches. James Madison famously wrote in his Memorial and Remonstrance Against Religious Assessments that no citizen should be forced to contribute even “a three pence” to support a church. Still, Trinity Lutheran argued that denying it a discretionary grant for its playground violated the Free Exercise Clause. 

In a 7-2 decision, the Supreme Court agreed with Trinity Lutheran.  Because Trinity Lutheran maintained that its playground was not used for religious purposes, the Court could not hold that failing to receive government money for its secular playground substantially burdened the church’s religious exercise – the usual requirement for free exercise violations. Instead, the Court argued that Missouri violated the Free Exercise Clause because it discriminated against the church. “The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church — solely because it is a church — to compete with secular organizations for a grant.” To deny Trinity Lutheran taxpayer money “because of what it is—a church” is unconstitutional.

The Court attempts to bolster its claim of unconstitutional discrimination by citing cases such as Church of Lukumi Babaye Aye, Inc. v. Hialeah, where laws that discriminated against a Santeria church were struck down.  It is true that the decision contains language such as, “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs.” However, the context suggests a different meaning than the Court’s, as the case itself is not at all analogous. Hialeah’s unconstitutional laws banned a sacrament, so that there was no doubt they substantially burdened religious exercise. Moreover, the law targeted one particular religion for unfavorable treatment. (Evidence included “The chaplain of the Hialeah Police Department told the city council that Santeria was a sin . . . [and] advised the city council: “We need to be helping people and sharing with them the truth that is found in Jesus Christ.”) In other words, it was an act of hostility against an unpopular minority religion.

Withholding taxpayer money from churches is not an act of hostility against Trinity Lutheran Church in particular or religion in general. On the contrary, the Establishment Clause requires it. As Justice Sotomayor’s trenchant dissent pointed out, the exclusion “does not make the State ‘atheistic or antireligious.’ It means only that the State has established neither atheism nor religion as its official creed. The Court’s conclusion ‘that the only alternative to government support of religion is government hostility represents a giant step backwards in our Religion Clause jurisprudence.’”

The majority barely mentions the Establishment Clause. The Clause’s longstanding principle that money from the public fisc should not subsidize religion is not even recognized as a compelling state interest.  Instead, it is dismissed as “a policy preference.” Because the decision reads as though there were only one religion clause, the Court never grapples with why the Establishment Clause bars direct government funding of religion.  That’s a shame, because, as Justice Sotomayor explains, a main goal of the Establishment Clause is to protect religion.  Historically, many supported a strong separation between church and state because they feared that a union of the two would degrade and corrupt their religion.  Indeed, the wall metaphor originates with Baptist Minister Rogers Williams, who worried about “a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world.”

Among the many problematic consequences of the Court’s decision is a remarkable privileging of religion.  Because of the religion clauses, religion and religious institutions are treated differently than their secular counterparts.  But after Trinity Lutheran, instead of a balance between unique benefits and unique restriction, churches basically get their cake and eat it too.  Churches keep their many special privileges, such as the ministerial exemption from antidiscrimination law.  At the same time, Trinity Lutheran erodes if not erases the special limit on government funding. (Because of a cryptic footnote and disagreement among the Justices, it is not clear what church endeavors besides playgrounds the government must fund on an equal basis.)

In addition, facilitating the public funding of religion also risks privileging majority religions. After all, powerful majority religions are the ones most likely to benefit from opening the public purse to religion, not minority religions. Once again, Justice Sotomayor gets it right: the new rule “favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded to do so successfully.”  Even if the government privileging of religion over secular does not give you pause, government privileging of majority religions over minority ones should. The current political climate makes this possible consequence especially troubling. 

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