Did SCOTUS Just Crack the Wall Between Church and State?

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U.S. Supreme Court.

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There weren’t that many chills and thrills in the Supreme Court term that ended Monday, but at least the justices seemed determined to make up for it by going out with a bang and letting us know what they’ll be up to when they come back from summer vacation. They agreed to get down and dirty with Donald Trump’s travel ban. They’ll tell us if denying a gay couple a wedding cake is protected by the First Amendment. And at least for now, they’ll hold off on deciding whether the Constitution protects the right to carry a concealed weapon in public for self-defense purposes. On this last point, at least Justices Clarence Thomas and Neil Gorsuch seem to think so.

For all that forward-looking action, the Court did save its only blockbuster ruling for the end. As its name tells us loud and clear, Trinity Lutheran Church v. Comer has to do with a church — or or rather, with a school operated by a church engaged in a First Amendment battle with the state over a playground. In the eyes of Missouri authorities, under the state constitution, Trinity Lutheran’s preschool and day-care center wasn’t entitled to receive public funds to resurface its playground with tire scraps. In a lawsuit in federal court, the church said this denial of grant money, for which it otherwise met all the state criteria with flying colors, was discriminatory and violated the free-exercise clause of the First Amendment.

Sparks fly at the Supreme Court whenever legal action pits church and state. But in the Trinity Lutheran dispute, it was remarkable how much comity conservatives on the Court found with some of its liberal members in concluding that Missouri indeed trampled on the religious rights of this house of worship. In a decision that yielded a number of notable concurring opinions, Chief Justice John Roberts called this kind of treatment a “penalty” against Trinity Lutheran for no other reason than being a faith-based institution that happened to operate a school serving local kids.

Missouri’s “policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” Roberts wrote. But he qualified that by observing that the onus of this controversy had nothing to do with a church demanding a handout from the state, but rather with government action that seemed gauged to “deter” the congregation’s participation, on equal footing with other nonreligious programs, in a program where saints and sinners alike should have access:

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.

This language, which was neatly wrapped up in Roberts’s 15-page opinion, seemed good enough for a majority of the Court. But then something weird happened: Roberts lost two key conservatives, and thus his majority, in one little footnote that seemed to have been explosive enough to cause internal division as Roberts jockeyed for votes and tried to reach consensus. Even the part of the decision explaining the vote breakdown shows how divisive the footnote must have been, especially for the Court’s conservatives: “ROBERTS, C. J., delivered the opinion of the Court, except as to footnote 3. KENNEDY, ALITO, and KAGAN, JJ., joined that opinion in full, and THOMAS and GORSUCH, JJ., joined except as to footnote 3.”

(Of note: Trinity Lutheran was one in a small group of cases the Supreme Court agreed to hear before the death of Justice Antonin Scalia. For over a year, the case mysteriously lay dormant in the Court’s docket without any action, let alone with a set day for oral arguments. Finally, sometime after President Donald Trump nominated Justice Neil Gorsuch to replace Scalia, the Court put the case back on the calendar. Maybe Roberts held off doing anything with it precisely because he sensed there’d be trouble deciding it with only eight justices.)

So what’s the big deal with Footnote 3? It sounds a lot like a compromise designed to keep the Court narrowly focused on the facts of the case and not bring about a crumbling down of the constitutional wall between church and state, especially in the area of where taxpayer money may or may not be used: “This case involves express discrimination based on religious identity with respect to playground resurfacing,” the footnote read. “We do not address religious uses of funding or other forms of discrimination.”

Gorsuch, he of Hobby Lobby fame (as a lower-court judge, he ruled for the religious chain of arts-and-crafts stores), wasn’t having any of this. Joined by Justice Clarence Thomas, the Court’s other ultraconservative, he took issue that the qualification may be read with suspicion by believers. Or perhaps by those who already view with suspicion the hard line the Supreme Court tends to take when religious entities seek the government’s blessing or funding for its activities. “Of course the footnote is entirely correct,” Gorsuch declared, “but I worry that some might mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion.”

The implication there is that, at least for Gorsuch and Thomas, the Court shouldn’t be green-lighting any kind of government discrimination against a given religion. As the Supreme Court readies to hear more about Trump’s alleged animus toward Muslims in instituting his travel ban, or whether a baker’s Christian faith trumps a married same-sex couple’s desire to obtain a wedding cake, Gorsuch’s words could soon take on new relevance.

All of this puts the Supreme Court’s more liberal members in a bit of a tough spot, especially institutionalists such as Justices Stephen Breyer and Elena Kagan. The latter joined Roberts’s opinion in full, something of a surprise given an emphatic dissent she authored in 2014 condemning sectarian legislative prayer. But Breyer didn’t join any of it, even if he did agree with the bottom line that Missouri was in the wrong in disadvantaging Trinity Lutheran. But rather than engaging in a contorted reading of past church-state precedents — including a 2004 case where the he helped uphold Washington state’s denial of scholarship money for a student who wanted to study theology — Breyer would take a simpler route: not treat it as a church-state case at all, but one of plain-vanilla discrimination.

“Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children,” Breyer wrote in a brief concurrence. “I see no significant difference. The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith.”

That leaves Justices Sonia Sotomayor and Ruth Bader Ginsburg, the leaders of the Supreme Court’s left wing. They were the only dissenters, but their disagreement was loud — Sotomayor even read the pair’s dissenting opinion from the bench, something she hasn’t done since that time she suggested Roberts and the Court’s other justices were out of touch on issues of race.

In their telling, the Supreme Court just about destroyed whatever remaining separation exists between church and state, and that Americans can no longer expect their government to be agnostic as to religion: “If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship,” Sotomayor wrote. “The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

Time will tell if things are as dire as Sotomayor predicts, but she’s correct in suggesting that the Supreme Court isn’t exactly principled when deciding religion cases. And that, more often than not, the Court will bend over backward to reach outcomes “when preference suits” — as when five justices decided that corporations have a religious right to deny their employees contraceptive coverage. Down the line, Trinity Lutheran could become the kind of case that will inspire enterprising legal advocates to keep sticking it to the government — and maybe, open the door to programs and benefits that, until now, remained out of bounds for the faithful.

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