SCOTUS Gets Religious Liberty Right–For Now

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.

 

19 thoughts on “SCOTUS Gets Religious Liberty Right–For Now”

  1. I was a bit surprised that SCOTUS actually took this case since (I think) when they did, the new Governor of Missouri reversed the decision so many thought there was no case remaining to resolve.

    I am not sure I am heartened by this result, though. The Masterpiece case is so different in scope and circumstance I don’t think this case informs about that one in anyway whatsoever.

    1. If the only critical comment you are able to offer is a “why aren’t you talking about what I want to talk about so then I can rant and rave about those cruel and sadistic Republicans?” then I must assume there is nothing in the substance of the article you disagree with. Am I wrong?

      1. I don’t agree with everything Mark wrote. I see the issue about the gay wedding cakes not as a religious liberty issue, but about discrimination. But his posts are the best here, and I’d rather let sleeping dogs lie.

        But it IS telling how this blog skirts around the major issues.

      2. “But it IS telling how this blog skirts around the major issues”

        Since when? This blog has dealt with ISIS, terrorism, healthcare, social issues, discrimination, taxes, economics, you name it, at one point or another, they have probably done it. There is no skirting here, just you unsatisfied and impatient that they haven’t yet given you an outlet to trash the Senate GOP healthcare bill. Give them a few days, when they have had a chance to go through it for themselves, and I am sure you will get your chance parrot all the Democrat talking points.

  2. Appreciated this detailed breakdown. And all things considered, I’m pretty sympathetic towards the religious liberty concerns of conservative Christians. Stubborn, myopic secularism does no one any favors.

    But acknowledging a connection between religious status and religious action, what happens when we start equating them in legal terms? If your definition of ethical religious action is shaped by a religious identity that purposefully discriminates (in the most basic sense of “discriminate”), how’s an equitable society to decide how much discriminating is too much?

    And getting back to Christianity in particular, what kind of a Christ-ethic measures itself according to what it’s allowed (or required) to withhold?

    1. Ben H–this is an excellent comment. You are aware of the distinction between what is legally allowable and what is ethically responsible. It is far different to argue that the law might allow Christians to “discriminate” (as you said, in the most basic sense) and to argue that Christians should not perform services. In general, I think the butchers, the bakers, and the candlestick makers should provide their services to everyone, but I do understand the difference in conscience that might be provoked.
      Your point about equating religious status and action is also reasonable and it is one I am wrestling with through this process. I don’t believe that activity by a religious person is, by definition, the exercise of religion in a constitutional sense. The founders did not write the Constitution thinking that we, the religious, walk around with Free Exercise bubbles that protect all of our activities. There has to be some outer ambit of activity that is obviously religious versus activity that cannot be construed as such. While for the orthodox person, such compartmentalization is anathema, constitutionally, we must argue for a compelling limit to the principle. Some have argued that such cases are really about compelled speech when it comes to artistic expression, and government should not compel speech. This would differentiate a creative act, like a floral arrangement for an event, from a bouquet of flowers that are generally available to anyone that walks in the door.
      One other thing should be considered here. It is problematic to hoist upon the Free Exercise Clause a 21st Century definition of government while only protecting rights with 18th Century conceptions. In other words, while Madison may not have considered religious people’s activities to all be religious, he also could not have conceived of a government that encroaches upon us in the manner our current government does. The extent of regulation, oversight, and compulsion are systematically different, which may require additional vigilance when it comes to protections. In this manner, it is appropriate to default toward religious liberty unless a compelling government interest is at stake. I prefer the pre-Smith standards far more than Smith. RFRA enshrines those standards against federal action, but not state action. That is the rub we are confronted with right now.

      1. On one hand I would agree that the businesses in question should provide services if for no other reason than the argument they use to not serve a gay wedding they should also have been using for decades (or centuries) to not serve weddings for divorced persons, which, as I have pointed out before, is also condemned as sinful. The same is true of those public officials involved in the issuance of marriage licenses.

        I think in the end, though, I would prefer a ruling in favor of the business. because I do not think a compelling government interest is at stake nor I do not think the government has any business taking possible instances of religious hypocrisy into account since to do so would require the government to litigate or legislate what a religion says or requires of its adherents and that would be extremely frightening indeed.

        But I would encourage those businesses who are intent on standing in their religious beliefs to be consistent. If you deny service to one type of condemned marriage, then do so for all the other types as well. Otherwise, the best solution is to stop all wedding specific services period.

      2. Well I’m glad you enjoyed it. :) And thanks for the thoughtful response. The legal questions are not ones I’ve studied or considered carefully, so I’ve learned a lot from you on that score. No doubt that our “post-Christian” moment raises thorny legal/constitutional questions around religious liberty.

        But zooming out a bit, I wonder if a Christ-shaped ethic might actually invite us to eschew cake-baking (and the like) as cause celebres in these conversations. Or if not, at least prompt us to extend our passion for religious liberty in service of something beyond a defense of historical Christian privileges. When Christians (of any stripe) can’t seem to manage one or the other, all the constitutional wrangling about religious liberty starts to look like just so much tribalism.

  3. Mark said, ” I don’t believe that activity by a religious person is, by definition, the exercise of religion in a constitutional sense.”

    Yes, indeed.

    What the court may decide may actually be more along the lines of theology than about the law.

    I do not see any clear biblical support for or against wedding cakes celebrating gay marriage. Jesus never even spoke about homosexuality, even though it was definitely an issue of the time. The apostle Paul condemned the practice, but he also supported slavery. If his support of slavery is now deemed to be no longer applicable, why not his condemnations against homosexuality?

    What concerns me is that evangelical Christians often couched their support of racial discrimination against African-Americans in biblical terms. And I am not just talking about Bob Jones University, which stood in support of bigotry far long than did other (so-called) Christians.

    Indeed, there is arguably more biblical support in support of racial discrimination than there is against gay wedding cakes.

    1. Mr. Adams,

      This debate is not over how in the past some Christians (or you in the present) misused or misunderstood Scripture. It is a red herring and a distraction. The debate over wedding cakes seems so trivial to many but to a few it is about compelling a person to participate in an event they believe to be sinful. Do you support forcing someone to do something under threat of prosecution that they believe is sin? And please take your own ideas of what is or is not sin out of it and put yourself in their shoes and ask yourself if you would like to be forced to be a part of something you sincerely believed you should not be part of.

      1. Also, I am just going to add…

        The Apostle Paul never supported slavery. Those who believe that what he wrote about the servant/master relationship equates to an endorsement of the institution have grossly misread the full intent of the New Testament and ignore passages that do directly mention slavery. In 1 Timothy 1:9-10 Paul directly lists enslavers (specifically meaning those who kidnap free men to sell them) with homosexuals in a list of the “lawless and disobedience”. The NT also demands equal treatment and respects the human dignity of all men. If slave trading is condemned, and all men are to be treated with the same dignity, how can one possibly claim that Paul or the other NT writers would have approved of the enslavement of Africans? Answer: They cannot without deliberate abuse of the Scripture.

        Those who in the past used Scripture to justify racism or slavery are guilty of, at best, misunderstanding, at worst deliberate abuse, of what the NT truly says about slavery. In like manner, those who today try to use that misuse of Scripture by claiming that the pro-slavery argument was Biblically sound, as you attempt, and that therefore because it has been rejected, ignoring that large segments of Christianity have always rejected it, we should reject Scripture’s clear condemnation of homosexuality are just as guilty of Scriptural abuse as those who used it to justify what they should not have.

      2. No one is being “compelled” or “forced” to be in the business of selling cakes. Or anything, frankly.

        No one is ever forced to go into business selling goods and services to anyone.

        BUT if someone makes that choice, then that person should not be able to refuse those services to customers because they happen to be black, or Hispanics, or conservative Christians, or Republicans, or Democrats, or Muslims, or Hindus, or even homosexuals.
        A business should not be free to pick and choose customers or employees based upon factors other than ability and character. Such discrimination–wholeheartedly anti-American– violates the ideal of a free marketplace.

        Cake bakers should serve all customers or get out of the business. And hiding behind their religion to justify unfair discrimination is what cowards do.

        Arguments today [by conservative Christians] who support prejudice against homosexuals today are very much similar to arguments that defended Jim Crow. Private businesses during Jim Crow would argue that they should not have to serve blacks or hire blacks and that the federal government should not compel them to do so. And, yes, many times the Bible was used to support such claims.

        I should say “abused.” The Bible was ABUSED to support Jim Crow, and the Bible is being abused now to support discrimination against gay marriage. Today Christians are often embarrassed when they hear that Christians decades ago used the Bible to support racial discrimination. Years from now, many Christians will look back with embarrassment with current discrimination against gay marriage (not to say that they will support it for themselves–just that they will be ashamed at just how cruel some Christians can be).

      3. You obviously do not read what other people say. I ALREADY said the Bible has been abused to support things it shouldn’t, including racial discrimination.

        I also agree with you that businesses should serve all customers or not be in business. But where we disagree is that I do not support forcing them to.

  4. Since when? This blog has dealt with ISIS, terrorism, healthcare, social issues, discrimination, taxes, economics, you name it, at one point or another, they have probably done it. There is no skirting here, just you unsatisfied and impatient that they haven’t yet given you an outlet to trash the Senate GOP healthcare bill. Give them a few days, when they have had a chance to go through it for themselves, and I am sure you will get your chance parrot all the Democrat talking points.”

    Uncivil. Please do not engage me any longer in conversation.

    1. I will engage you in conversation whenever I so choose, when your comments deserve a response. You of all people have no right to stand on civility.

  5. “The Apostle Paul never supported slavery. Those who believe that what he wrote about the servant/master relationship equates to an endorsement of the institution have grossly misread the full intent of the New Testament and ignore passages that do directly mention slavery. In 1 Timothy 1:9-10 Paul directly lists enslavers (specifically meaning those who kidnap free men to sell them) with homosexuals in a list of the “lawless and disobedience”. The NT also demands equal treatment and respects the human dignity of all men. If slave trading is condemned, and all men are to be treated with the same dignity, how can one possibly claim that Paul or the other NT writers would have approved of the enslavement of Africans? Answer: They cannot without deliberate abuse of the Scripture.”

    You are all over the place here.

    Does or does not Paul tell slaves to obey their masters, even if their masters are cruel?

    Paul clearly accepts slavery as an acceptable institution in the social and economic environment of the time. He could have condemned the practice, saying that it is wrong to enslave another human being, because everyone should, as you point out, be treated with the same dignity. He condemned other practices.

    But he does no such thing. He tells slaves to accept their place. Even if their masters were cruel.
    Clearly he was perfectly OK with the institution of slavery.

    1. “Does or does not Paul tell slaves to obey their masters, even if their masters are cruel”

      Paul does tell that to slaves. But he also tell masters to treat their slaves compassionately and as brothers. Mistreatment of slaves is clearly condemned by Paul. And if the master is to treat the slave as a brother, then the slave is really not a slave anymore.

      You want to equate “recognition” of the social and economic reality with “acceptance” and then equate “acceptance” with endorsement. Paul recognized the reality, maybe he even accepted it, but that is far from endorsing it, which he never did. Far from it.

      “He could have condemned the practice, saying that it is wrong to enslave another human being”

      Another example proving my theory that you don’t really pay attention to what has been said before. I specifically cited 1 Timothy 1:9-10 in which Paul specifically condemns slave traders. Is this not clear enough for you?

      You can continue to equivocate all you want. I have presented my case sufficiently. The NT does NOT endorse slavery or racial discrimination.

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