The U.S. Supreme Court on Monday issued a decision that could forever shift the First Amendment’s guarantee of separation between church and state.
Not surprisingly, however, the decision didn’t go far enough for newly minted Associate Supreme Court Justice Neil Gorsuch, whose concurring opinion suggests he’d like to see no barrier between religious institutions and state funding at all—placing him to the right of Justice Samuel Alito on this issue.
The decision came in the case of Trinity Lutheran Church of Columbia, Inc. v. Comer—a challenge to a provision of the Missouri Constitution prohibiting direct government funding of houses of worship. These provisions exist in at least 36 states and are broadly known as Blaine Amendments. As speaker of the House of Representatives, James G. Blaine proposed a U.S. constitutional amendment in 1875 prohibiting states from funding religious education. That proposed amendment failed, but it led many states, including Missouri, to pass their own versions.
Following Monday’s decision, the fate of these Blaine Amendments remains uncertain.
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In Trinity Lutheran, the Supreme Court was asked to decide a challenge to a state-run environmental program that—as laid out in the program and justified under the Blaine Amendment in Missouri—excluded churches and other houses of worship. The program provides grants to help nonprofit organizations buy rubber playground surfaces. The goal of the program is twofold: keep used tires out of state landfills and help upgrade playground facilities at the same time.
Despite the program’s prohibition on funding churches and other houses of worship, Trinity Lutheran Church applied for, and was denied, one of the grants to refurbish its playground for a day care and preschool the church runs on its property. When the state of Missouri denied Trinity Lutheran’s application, the church sued, arguing, among other things, that its exclusion from the program violates the First Amendment’s Free Exercise Clause. According to Trinity Lutheran’s attorneys from the Becket Fund—the conservative nonprofit litigation mill that also represented the Little Sisters of the Poor in their challenge to the Affordable Care Act’s birth control benefit—being denied grant funding amounts to religious discrimination. That is because, the attorneys argue, the funding in the Missouri grant program is widely available to secular nonprofits, so denying Trinity Lutheran’s application effectively punishes the church for exercising its faith.
A federal appeals court disagreed and ruled against Trinity Lutheran, holding that Missouri’s exclusion of churches and other houses of worship from its program was a legitimate exercise of the separation of church and state. On Monday, a majority of Supreme Court justices disagreed and reversed that decision.
Chief Justice John Roberts wrote the decision for the Court, with Justices Elena Kagan and Stephen Breyer joining the majority. The decision purports to only address Missouri’s grant program, noting in a footnote that it “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.”
And that may turn out to be true, which means the opinion will not be used to expand legal challenges to Blaine Amendments across the country. Of course, that was the hope with Burwell v. Hobby Lobby, the Supreme Court ruling that allowed secular for-profits to claim religious accommodations to complying with the birth control benefit in the Affordable Care Act, and look where that got us—a swarm of litigation looking to extend tax exemptions from the benefit altogether.
But even if Trinity Lutheran is ultimately a decision limited to its particular facts, there is no denying that it has shifted the way the Supreme Court views government funding of religious institutions. The nutshell of the decision is that there are some cases in which the government can be required to give money to religious institutions directly—in this case, by otherwise granting, or at least considering, Trinity Lutheran’s application.
“It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel,” Roberts wrote for the majority. “But, as the Department itself acknowledges, the Free Exercise Clause protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'”
According to the majority of justices on the Court, this is not a case about the government subsidizing religion by giving a church grant money to refurbish its playground; the case is about excluding religious institutions from a government benefit on the basis of their status as religious institutions. The benefit is available to all nonprofits, the Court reasons, so to exclude religious ones under these grounds is discrimination.
This is dangerous logic that stretches well beyond playgrounds, and into crisis pregnancy centers, “pray the gay away” programs, and voucher schools, just to name a few. If a religiously affiliated nonprofit wants access to public funding, this logic goes, all it has to do is apply to be not just equally considered, but even equally funded in some cases. Which is exactly why conservatives took an innocuous looking case about a church playground all the way to the Supreme Court. Like the “plump grandmothers” in McCullen v. Coakley, who largely succeeded in their challenge to abortion clinic buffer zones nationwide, the framing of a case and the supposedly sympathetic appearance of the plaintiffs can make or break conservative jurisprudence in the Roberts Court.
And this is where Gorsuch comes in. In his concurring opinion he notes that he would offer two “modest qualifications” to the majority’s ruling. Notably, those “modest qualifications” would blow up the First Amendment entirely.
“First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and [those that discriminate based on] religious use,” Gorsuch wrote. He continued:
Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).
Here is where Gorsuch brings it home: “After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status).” In short, Gorsuch is arguing that religious actions—including those that affect the rights of others—should be protected from discrimination, not just internal religious beliefs that people may hold.
That distinction between free exercise and inward belief matters not only for this case, but for a case next term involving Masterpiece Cakeshop, a Colorado bakery that objected to making a wedding cake for a same-sex couple. Masterpiece, too, claimed that the First Amendment’s freedom of speech and Free Exercise Clause protected its actions. On Monday, the Court agreed to hear that case, and on Monday, Gorsuch made clear his upcoming vote will almost be guaranteed in favor of the bakery.
Thankfully, though, we have Justice Sonia Sotomayor, who has emerged as the Court’s voice of the left. She is consistently grounded in reality, and has been unwilling to accept any more of the conservative wing’s legal gymnastics that end up protecting social conservatives. Her dissent, joined by Justice Ruth Bader Ginsburg, skewers the logic and outcome of the case, taking on the majority directly and noting the extreme danger its opinion represents.
“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground,” Sotomayor’s dissent began. “The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”
“Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” she wrote.
Sotomayor then went on to connect the playground with Trinity Lutheran’s religious ministry, noting the two are inseparable. In other words, in this particular case, she is agreeing with Gorsuch’s framing—that religious exercise affecting others is inextricable from belief—despite what the majority claims.
“The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission,” Sotomayor wrote. “The Court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents.”
In other words, from here on out, how does the Court plan on distinguishing between outward religious practice and inward religious belief? The entirety of Supreme Court precedent allows the government to make certain distinctions in things like funding and programming decisions with regard to religious status, or to balance beliefs that immediately affect the rights of others, or in situations that create the appearance of the government favoring certain beliefs over others. How does Monday’s decision not depart from that precedent?
Perhaps for emphasis, Sotomayor ends with “I dissent,” choosing to avoid the often customary, “I respectfully dissent.”
Like many Supreme Court rulings, the immediate impact of Trinity Lutheran won’t be known for some time. For now, Missouri’s and other state’s Blaine Amendments appear to remain intact. But what we do know, based on politics and history, is that conservatives are at this moment lining up their next challenge to advance Trinity Lutheran’s logic. And with Neil Gorsuch on the bench, they got exactly the architect they were hoping would help draft their plans.