Consensus & Uncertainty at the Supreme Court

CNS photo/Tyler Orsburn

Not every religious-freedom drama involves a murder in the cathedral or the martyrdom of a chancellor—or, for that matter, contraception coverage and the Little Sisters of the Poor. The latest chapter in the story of church-state relations in the United States was about recycled tire scraps, but that chapter is no less important for being prosaic.

Trinity Lutheran Church in Boone County, Missouri, runs a preschool with a playground. The church wanted to replace the pea-gravel under its swings and slides with a softer, safer rubber surface made from old tires. After all, as Chief Justice John Roberts put it, “youngsters…often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” It seemed the church was in luck, because Missouri’s Department of Natural Resources has a program that provides reimbursement grants to schools, daycare centers, and various other nonprofits that install these surfaces. The government and the grantees cooperate to increase playground safety and reduce waste in landfills. Everybody wins.

Trinity Lutheran’s application for a reimbursement grant was denied, however, and for one reason: it is a church. Missouri’s constitution has a provision that outlaws spending public money “in aid of any church, sect or denomination of religion.” In the Chief Justice’s words, “No churches need apply.” The question presented to the Justices was whether the First Amendment’s Free Exercise Clause permits this unyielding policy.

Now, most people have heard of “thinking like a lawyer.” Put aside the lawyer jokes for a moment. Essential to this “thinking” is comparing, analogizing, and distinguishing. At the top of the lawyer’s toolkit is the argument that Case A is, or is not, like Case B—and why.

So, which case is the denial of Trinity Lutheran’s application more like? Is it, as Justice Stephen Breyer concluded, like refusing to send a fire truck to a burning church—a clear, religion-based denial of “ordinary” and “general government services” that, clearly, the Constitution does not require? Or, as Justice Sonia Sotomayor warned in her lengthy dissent, is reimbursing the church indistinguishable from Patrick Henry’s 1784 proposal that Virginia financially support “teachers of the Christian Religion,” a plan that prompted James Madison’s famous and fiery denunciation in his “Memorial and Remonstrance Against Religious Assessments”?

The justices agreed, by a 7-2 vote, that Missouri’s decision violated the First Amendment’s free-exercise guarantee and ran afoul of the fundamental principle that laws or policies that discriminate or penalize on the basis of religion are almost always unconstitutional. “The exclusion of Trinity Lutheran from a public benefit,” the Supreme Court declared, “for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” For support, the majority relied on one earlier decision striking down a Tennessee law that categorically disqualified ministers from legislative office and another that invalidated a Florida city’s ordinance that targeted animal slaughter in religious rituals. The dissenters, on the other hand, cast the outcome in terms of nothing less than a historically unprecedented attack on “this country’s longstanding commitment to a separation of church and state.”

All things considered, the justices in the majority had the better of the argument. It is certainly true, as Justice Sotomayor emphasized, that the separation—that is, the differentiation—between religious and political authority safeguards religious and political freedom. Yet this separation is not so strict as to require the blanket exclusion of churches from generally available and entirely secular public benefits, or to rule out cooperation between governments and religious institutions in advancing safety, education, health, and social welfare. Some observers, such as the incoming dean of Berkeley Law, Erwin Chemerinsky, complained that “the noble and essential idea of a wall separating church and state is left in disarray, if not shambles,” but this overreaction reflects a misunderstanding of the idea. Our Constitution wisely protects religious liberty by preventing official interference with strictly religious affairs. It would be unconstitutional for Missouri to pick Trinity Lutheran’s hymns or ordain its pastor, but it is well within our tradition to allow the church, like anyone else, to apply for help with playground safety.

There is, to be sure, a long and honorable tradition of “slippery slope” arguments in First Amendment cases. Madison warned in his “Memorial and Remonstrance” that it is “proper to take alarm at the first experiment on our liberties.” Still, protecting the knees of young children who happen to attend a Lutheran preschool is a long, long way from the Act of Supremacy or, for that matter, the Patrick Henry proposal. Indeed, it is noteworthy that Missouri conceded, and the majority accepted as given, that it would not violate the First Amendment’s Establishment Clause to reimburse Trinity Lutheran for the playground improvements. Twenty years ago, this would have been sharply contested (as it was by the two dissenting Justices). But since then the Supreme Court has moved in the direction of accommodation and cooperation, shifting the emphasis from no-aid separation to government neutrality, and this view is now relatively entrenched.

It is also significant that, to smooth the way to their conclusion, the majority read and narrowly interpreted a 2004 case, called Locke v. Davey, on which Missouri relied. There, the Court had permitted the state of Washington to deny scholarship funds to an otherwise-eligible college student who planned to major in devotional theology and train for the ministry. According to the majority in Locke, this “mild” discrimination, although not constitutionally required, was within the state’s discretion and the constitutionally permissible “play in the joints”—particularly given Americans’ deeply rooted and longstanding worries about using public funds to pay for the religious training of ministers. Although the Trinity Lutheran dissenters insisted that Missouri should enjoy similar leeway, the majority insisted that it is one thing to ban specifically religious uses of public funds but quite another to put Trinity Lutheran to the “choice between being a church and receiving a public benefit.” “Trinity Lutheran,” the Chief Justice emphasized, “is a member of the community too.” 

The decision’s implications and impact remain uncertain.

The case’s bottom line and the no-discrimination rule the Court applied are relatively clear. That the justices achieved something like consensus and did not divide along depressingly familiar fault-lines was welcome and refreshing. Still, the decision’s implications and impact remain uncertain.

For starters, immediately after rejecting Missouri’s defense of its “no churches need apply” rule, Chief Justice Roberts dropped a cryptic footnote that commentators have been puzzling over like haruspices contemplating entrails. “This case,” he noted, “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 point of this aside is not entirely clear. On the one hand, it is an unremarkable, almost empty observation. After all, it is usually the case that the Court decides particular cases involving particular facts and doesn’t decide a case other than the one before it. The conventional wisdom, though, is that at least some of the Justices in the majority needed re-assurance, and wanted to assure readers, that Trinity Lutheran itself does not automatically mean that the Constitution requires governments to pay for, say, the maintenance and repair of historically significant church buildings or, more importantly, the tuition of students whose parents choose to send them to religious schools.

It is true, as Justice Breyer said in his concurring opinion, that “public benefits come in many shapes and sizes” and that it is appropriate to “leave the application of the Free Exercise Clause to other kinds of public benefits to another day.” It is also true, though—as Justice Neil Gorsuch recalled in his own separate opinion—that legal cases are supposed to be “governed by general principles, rather than ad hoc improvisations” and that “the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

What, then, does Trinity Lutheran mean for the school-choice debate? As Justice Sotomayor recounted at length, many states have provisions in their constitutions that are similar to Missouri’s and that are understood to prevent education-reform experiments with tuition vouchers and tax credits that give low-income families a realistic option to select religious schools for their children. Is this denial and discrimination, like Missouri’s refusal to reimburse Trinity Lutheran for its playground-resurfacing project, “odious to our Constitution”? Is a policy that bars otherwise-available tuition assistance from finding its way into the “coffers” of religious schools one that discriminates (impermissibly) on the basis of religious status or (permissibly) on the basis of religious use?

We will almost certainly find out soon. The day after issuing its ruling against Missouri, the Supreme Court told courts in Colorado and New Mexico to reconsider several rulings that had invoked Missouri-type provisions to prohibit aid to students attending religious schools. On balance, the stronger argument is that scholarship funds and other forms of assistance for these students serve the common good and advance a public, “secular” purpose no less than do incentives for installing safer playground surfaces. Discrimination against otherwise-eligible students attending otherwise-qualified schools, simply because they are religious, seems incongruous with the fundamental principle underscored and applied in Trinity Lutheran. Stay tuned.

A dog that many expected to bark loudly in this case stayed quiet. As many scholars, including Notre Dame’s John McGreevy and Columbia’s Philip Hamburger, have established, it is difficult to separate the various no-aid amendments that many states adopted, and some had imposed on them by the national government, in the late nineteenth century from that time’s pervasive and often ferocious anti-Catholicism. These “Blaine Amendments”—so-called in memory of the “continental liar from the state of Maine” who proposed an amendment banning aid to “sectarian” schools to the federal Constitution—vary in their terms but were animated by the same nationalism, nativism, and prejudice. Contrary to the claims of these provisions’ contemporary defenders, the bans were less about expressing and vindicating a commitment to “secular” government than about marginalizing and minimizing a perceived threat to the project of using “common schools” to form loyal Americans.

The Supreme Court has declared, from time to time, that laws motivated by “animus” lack a rational basis and violate the Equal Protection Clause of the Fourteenth Amendment. These declarations have, in recent months, been the basis of some of the arguments against President Donald Trump’s executive order imposing a “travel ban” on persons from several predominantly Muslim countries. Similar arguments have for some time been lodged against the Blaine Amendments, and several of the briefs filed with the Supreme Court in Trinity Lutheran urged the Justices to rule broadly that these provisions are invalidated by their unsavory origins and goals.

Although some of the Court’s members have acknowledged the Blaine Amendments’ history and condemned their premises, these matters were left entirely unaddressed in Trinity Lutheran. There are good reasons for reservations about constitutional doctrines that require or invite courts to read the minds and evaluate the motives of legislators. It is too easy to assume that what animates a policy to which we object must be “animus.” Still, in light of the salience of the arguments about the Blaine Amendments’ aims and context, the Court’s silence was striking.

Another theme that was prominent in the public conversation but almost entirely absent from the Justices’ opinions is expressed succinctly by Professor Leslie Griffin of the University of Las Vegas, Nevada: “Funding religion can pay for religious discrimination, violation of human rights and lack of equality.” It was argued by some, both in the Court itself and in the court of public opinion, that a reason to rule against Trinity Lutheran was to close the door to state support for, and implied endorsement of, “discrimination” by religious schools, hospitals, and agencies. (Recall that, in 2012, the Court ruled unanimously that the First Amendment protects the right of religious employers to “discriminate” in the selection of their religious ministers, teachers, and leaders.) It was tempting to hope that a religious-freedom case about playground surfaces could proceed without “culture war” baggage—and, in terms of the opinions’ themselves, it did—but, in this case, the appearances are deceiving. It remains to be seen whether a Court ruling like Trinity Lutheran can accomplish much if voters and elected officials decide that religious institutions’ efforts to act with mission-integrity render them unworthy to receive public benefits or cooperate for the public good.

Published in the September 8, 2017 issue: 

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

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