The issue seems paltry at first glance. A preschool/daycare affiliated with a church applies for state funding to help with some playground improvements. The goal of the Missouri program is to put recycled tires to good use. Trinity Lutheran Church Child Learning Center’s application for the funding was judged to be fifth out of forty-four applicants, but was ultimately denied on religious grounds. According to the Missouri Constitution,
“…That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion…”
Trinity Lutheran sued in Federal District Court, where the case was dismissed, and appealed to the Eighth Circuit Court of Appeals, which ruled in favor of Missouri. Today, the United States Supreme Court reversed the Eighth Circuit and ruled in favor of the church and preschool in Trinity Lutheran Church v. Comer.
The fundamental issue is the nature of the Free Exercise of religion in the First Amendment. Can the government withhold a generally available benefit without violating Free Exercise? Locke v. Davey seemed a strong precedent for Missouri. In Locke, Washington had a scholarship program for state residents, but it restricted funds for Locke and other students pursuing divinity or “devotional theology” as a course of study. The Court upheld Washington’s decision in 2004. Locke provided the key rationale for the district and circuit courts in their decisions against Trinity Lutheran. The Supreme Court disagreed.
In Locke, the state’s decision was based on what Locke sought to do with the funding, while in Trinity Lutheran, the state’s decision was based on Trinity Lutheran’s status as a religious institution. Locke was denied funding not because he was a Christian, for he could have used the scholarship to do study virtually anything, but his course of study would have resulted in state funding of religious training and activity. With this program, according to the Court, Missouri “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” This effectively penalizes the religious. Chief Justice Roberts declares, at the end of his opinion, that putting institutions in such a position is “odious to our Constitution.”
This decision is not groundbreaking, but it does clarify, potentially, the Court’s direction on religious liberty. Locke has seemed an outlier when stacked against the rest of the Court’s jurisprudence, but instead of overruling Locke, the Court in Trinity narrows its effect in light of other governmental funding measures.
There are two other fascinating issues related to Trinity Lutheran. Some Court opinions are famous not only for the ruling or reasoning, but for their footnotes.* Trinity Lutheran’s footnote #3 could become historically significant. It reads:
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.
Justices Thomas and Gorsuch refused to sign on to all of the Court’s opinion because of that footnote. They both worry the footnote unnecessarily narrows the Court’s ruling so that some could read it to mean the principles at stake are only relevant or pertinent in very similar kinds of cases. In a way, as Gorsuch notes in his concurrence, the footnote is entirely accurate because court cases are tethered to the facts that gave them birth. In another way, the Supreme Court’s rulings are rooted in general principles applied to particular facts. Gorsuch reasons that “general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”
Gorsuch’s comment is elaborated in the rest of his concurrence. He fears the hard-line the Court draws between religious status and religious action. In order to distinguish Trinity Lutheran from Locke, the Court reasons Locke was not discriminated against for who he was, but for what he wished to do, while such was not the case for Trinity Lutheran. Disentangling status and action can be difficult if not impossible for the religious. As Gorsuch writes,
“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).”
After all, as Gorsuch comments, the Free Exercise Clause seems directed toward actions and not status or belief. The language demands as much and to argue otherwise minimizes the concept of religious activity.
Why does this matter? If religious status, and not action, is the core of Free Exercise, what happens when the Court picks up other religious liberty matters? Does a law that punishes religious bakers, for example, for refusing to bake a cake for a same-sex couple violate Free Exercise? Does it punish based on the religious affiliation of the baker or for the activity the baker refuses to carry out? On Monday, the Court agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, where this precise issue will take center stage, during its next term. Granted, the cases are quite different. There are penalties involved in Masterpiece, not only the withholding of a government benefit. There is a clash between asserted individual rights–the right to religious liberty and the right to be free from discrimination based on sexual orientation. There is no guarantee that footnote #3 will give us a guide to how such a clash will play out, but it could be critical. Four members of the Court agree with it and five don’t, but those five disagree for very different reasons.
Trinity Lutheran, beyond its footnotes, is also interesting because of the ideological breakdown of the votes. Generally progressive voices, Breyer and Kagan, joined with the result for a 7-2 split on the judgment. Kagan voted with the Court’s opinion without reservation, while Breyer concurred in the result and much of the reasoning. There is, potentially, a heavy majority that takes a strong view of Free Exercise, at least within the confines of Footnote #3. While this is no guarantee of what might happen in future cases, religious liberty advocates should be heartened by this result.
*Fittingly, I am footnoting an example. In United States v. Carolene Products Company, Justice Stone argues that some kinds of Equal Protection claims deserve heightened scrutiny from the Court. His reasoning, though not only found in the footnote, revolutionized how the Court handled a wide range of Equal Protection claims in the future.