A troubling free exercise decision

The U.S. Supreme Court's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 2017 DJDAR 6222 (June 26), is deeply disturbing because it is the first time in history that the Supreme Court has held that the government is constitutionally required to provide assistance to religious institutions. This is a dramatic change in the law and one that likely is going to require the government to provide much greater support for religious institutions than ever before.

The state of Missouri has a program where it provides reimbursement grants to schools that install playground surfaces made from recycled tires. The state provides this aid to public and secular private schools, but it had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. This is because of a provision of the Missouri constitution which prohibits the government from giving aid to religious institutions. A majority of the states have similar provisions in their state constitutions.

Trinity Lutheran of Columbia, a religious school, applied for the aid and was denied. It sued claiming an infringement of free exercise of religion and equal protection. The Supreme Court, in a 7-2 decision, held that Missouri violated the rights of Trinity Lutheran under the free exercise clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. Chief Justice John Roberts wrote for the court and said that Missouri was clearly discriminating against religious institutions in the receipt of this benefit and that therefore the State had to meet strict scrutiny under the free exercise clause to justify the denial of the benefit.

Most Supreme Court cases about aid to parochial schools have focused on whether the government violates the establishment clause when it chooses to provide a particular type of assistance. Only once before had the court considered the possibility that the Constitution compels government aid to religious institutions and there the court emphatically rejected such a requirement. In Locke v. Davey (2004), the court considered a program in the state of Washington that provided college scholarships to students from that state. Joshua Davey wanted to use his Promise scholarship to attend a seminary to be ordained as a minister, but the state refused to allow this. Davey, like Trinity Lutheran, sued claiming this violated his free exercise of religion and denied him equal protection. The court, in a 7-2 decision, in an opinion by Chief Justice William Rehnquist, rejected Davey's claim and held that it did not violate the Constitution for the government to insist that its funds be used at secular institutions.

In Trinity Lutheran, the court distinguished Locke v. Davey on two grounds. First, the court said: "Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do -- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." Second, the court said that Locke v. Davey involved aid for training a minister; whereas this case concerns assistance for playgrounds.

The court found that Missouri failed to meet strict scrutiny and Chief Justice Roberts concluded his opinion with the powerful statement: "But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand."

Justice Sonia Sotomayor wrote a vehement dissent joined by Justice Ruth Bader Ginsburg lamenting that this was the first time in history the Supreme Court ever found that the government was required to provide aid to a religious institution. She described the framers' desire to keep people from being taxed to support the religions of others.

There is much that is very troubling about the court's decision. This opens the door to religious institutions suing whenever they are denied any form of aid given to secular institutions. Chief Justice Roberts' only attempt to address this or to limit the reach of the court's holding is found in footnote 3, where he writes: "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." Only three other justices (Kennedy, Alito and Kagan) joined this footnote. Justices Clarence Thomas and Neil Gorsuch wrote separately to say that they did not and clearly indicated that they wanted to overrule Locke v. Davey.

I am skeptical that this holding can or will be limited to aid for playgrounds. The court's explicit use of strict scrutiny for the denial of aid to religious institutions will make it hard to justify treating them differently. Moreover, the court rejected Missouri's interest in not using tax dollars to subsidize religious institutions as insufficient to meet strict scrutiny. Chief Justice Roberts decrying the denial of aid to religious institutions as "odious" also suggests states will be no more successful in limiting assistance in other areas.

The court's distinctions of Locke v. Davey indicate that the holding is not likely to be limited to playgrounds. As to the first distinction, that Trinity Lutheran was wrongly denied aid because of what it is, any time the government denies aid to parochial schools it is because of what they are: religious institutions. This would seem to make any denial of aid to religious schools unconstitutional when assistance is provided to public schools. Or for that matter, it would make it unconstitutional to deny religious institutions any aid that is provided to secular institutions. For years, the government refused to provide faith based institutions the assistance offered to secular institutions, whether for preschools or drug rehabilitation programs or other social services. Religious institutions could receive the aid, but they needed to create a secular arm for the government assistance. The charitable choice movement has sought to allow faith based institutions -- churches, synagogues, mosques -- to directly receive government assistance. The language in Chief Justice Roberts' opinion suggests that charitable choice may be a constitutional requirement. After all, the denial of aid always is because of what the institutions are: churches, synagogues, mosques.

The court's other distinction based on how the aid is used is equally troubling. As the court often has observed, dollars are fungible. Aid provided for playgrounds frees up money for the parochial school to use for other purposes, including religious indoctrination. Previously, in Zelman v. Simmons-Harris (2002), the court said that it was constitutionally permissible for the government to allow vouchers to be used in parochial schools. The court's decision in Trinity Lutheran suggests that the government must allow them to be used there when they can be used in secular schools. Also, with this distinction, the court invites endless line drawing as to what types of aid are like Trinity Lutheran and which are like Locke v. Davey.

Soon before she left the Supreme Court, Justice Sandra Day O'Connor spoke eloquently of the need for the separation of church and state when she wrote: "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?" Why indeed? But that is exactly what the court did in Trinity Lutheran in taking a significant step towards dismantling the wall that separates church and state.