//  6/28/17  //  Commentary

Cross-posted from ACS Blog

In Trinity Lutheran Church (“TLC”) v. Comer, the Supreme Court confronted a novel question – does the Free Exercise Clause require a state to treat houses of worship identically with other non-profit entities seeking a discretionary grant aimed at enhancing health and safety? By a 7-2 vote, the Court said yes.  The number of votes for the result, however, masks very deep divisions among its supporters about Religion Clause and federalism principles.

The case involved Missouri’s program for grants to subsidize the cost of resurfacing playgrounds with materials from scrap rubber tires.  TLC had applied for such a grant, and the Missouri Department of Public Resources denied the grant solely on the basis of a provision in the State Constitution that prohibits public funding of houses of worship.

In an opinion by Chief Justice Roberts, the Court brushed aside concerns of federalism and church-state separation. Instead, the opinion focuses on discrimination based on “religious identity,” and asserts that state interests in church-state separation cannot justify such discrimination. If a state creates a public benefit, even if not widely available, it may not categorically exclude houses of worship.  In this case, the purpose of the grant – playground safety – reinforced this approach.  

The opinion fails to engage seriously with the Religion Clause principles implicated by these facts.  The three decisions on which the Court relies did NOT involve discretionary benefits OR houses of worship. In Widmar v. Vincent and Rosenberger v. Rectors and Visitors, the Free Exercise Clause played no part whatsoever. And all three, including McDaniel v. Paty, involved denial of separate constitutional rights to religious persons or groups, not the denial of funds to religious entities.

Moreover, a state’s constitutional exclusion of houses of worship from discretionary benefits is not a simple “policy preference,” as Roberts describes it in passing.  The Court’s inattention to principles of federalism and church-state separation must be the result of deep divisions among the Justices about those principles.  Had Roberts’ opinion engaged seriously with questions about religious uses of the playground, as Justice Sotomayor’s dissent urged, he would have needed to address the precedents barring religious use of public funds.  Any direct engagement with those questions, last confronted by a splintered Court 17 years ago, would have shattered the majority in TLC as well.

Moreover, the Court’s disregard for the state’s interest in developing its own church-state separation principles – the “play in the joints,” recognized in Locke v. Davey – reflects exactly the same institutional interest in maintaining a seemingly cohesive majority opinion. The opinion barely acknowledges the longstanding and widespread pattern, well documented in the dissent, of state prohibitions on public funding of houses of worship.  Although these prohibitions take different forms and arose at different times – from before the adoption of the federal constitution until well into the 20th century – they all emerged from similar wellsprings of concern about state funding of religious experience. It is at least curious that Justices who are prominent members of the Federalist Society would be so indifferent to this thick history of state constitutional concern.

To what extent will TLC change the law?  The answer pivots on the cryptic footnote 3 to the Court’s opinion: “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.” The footnote, joined by only Roberts, Alito, Kagan, and Kennedy, seems designed to cloak disagreement among them.  It appears to limit the opinion to its facts and to leave disputed boundary questions about “religious uses” for later.  We won’t have to wait long. The day after the Court decided TLC, it vacated and remanded a quartet of state court decisions.  These decisions had interpreted state constitutions to exclude the use of voucher assistance, or in kind aid, at religious schools. Footnote 3 will offer no guidance on these cases, which will demand attention to the first principles that TLC neglects.

TLC offered newly confirmed Justice Gorsuch a test of fidelity to the methodology of originalism, and he failed miserably. An originalist would inevitably see that the Free Exercise Clause, made applicable to the states by ratification of the 14th Amendment in 1868, should be viewed in light of the then widespread constitutional norm against direct aid to houses of worship. Justice Gorsuch’s separate opinion never engages the detailed history, offered by Justice Sotomayor, showing that bans on state aid to houses of worship were common at the founding, and nearly uniform by the time of the adoption of the 14th Amendment.

To the extent that Gorsuch disregarded these provisions as marks of anti-Catholic discrimination – a popular trope in commentary on TLC – his concerns are both unvoiced and deeply misplaced.  Many of these state provisions, including Missouri’s, appeared originally in late 18th and early 19th century state constitutions.  The major disagreements during that era were entirely among Protestants, and did not break down along Protestant-Catholic lines.

The changes that TLC will bring about in principles of federalism and church-state relations are quite unpredictable.  But the tone of the Court opinion does not inspire confidence that those who joined, including Justice Kagan, embrace any commitment to church-state separation in funding matters, or to federalism principles that will permit states to follow their own longstanding policies in this regard.

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