Paving a Playground, and Weeding the Unruly Garden of Religious Liberty

 
 

This week’s 7-2 decision in favor of Trinity Lutheran Church goes a long way toward restoring order to the Supreme Court’s religious liberty jurisprudence.

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The First Amendment religious liberty jurisprudence of the Supreme Court over the course of the last seventy years or so has not, to put it mildly, been a model of clarity or principled coherence. If it were a garden, it would appear overgrown by weeds and choked by shrubs and trees in bad need of pruning. But the Court under Chief Justice John Roberts has been making real progress, case by case, in bringing order out of the tangled mess it inherited from its predecessors. Its latest contribution to this brush-clearing operation, in Trinity Lutheran Church v. Comer, is a significant one, in which the chief justice himself wielded the machete and pruning hook with admirable care.

Trinity Lutheran Church in Columbia, Missouri, operates a preschool and daycare called the Child Learning Center, enrolling about ninety children without restriction as to religion. Its playground is largely covered with pea gravel, which is functional but fairly unforgiving for little knees and elbows when kids take a tumble. The Missouri Department of Natural Resources, seeking to reduce the volume of scrap tires in the state’s landfills, sponsors a program in which tires are recycled to make a rubberized playground surface, and offers nonprofit organizations grant funding for the resurfacing. Trinity Lutheran applied and placed fifth out of forty-four in a competitive process for one of fourteen grants given in 2012. But the department’s director struck Trinity Lutheran from the list of grant awardees because of a provision of the Missouri Constitution declaring that no state funding can ever be disbursed, “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The case thus pitted a simple First Amendment principle—that the state cannot “single out the religious for disfavored treatment,” as the chief justice put it—against an equally simple principle of the Missouri Constitution that did just that. With respect to this program at least, Missouri officials had interpreted the state constitution as categorically barring not only funding of centrally religious purposes and activities but also treatment of religious institutions on an equal footing with similarly situated nonprofits that are all eligible for state subsidies. Losing its challenge to the state’s prohibition in both the US district court and the Eighth Circuit, Trinity Lutheran won a resounding 7-2 victory in the Supreme Court this week, with even the liberal Justices Stephen Breyer and Elena Kagan joining the majority.

Whatever might be said on behalf of the general principle that the state has no business giving financial backing to churches, it’s clear that Missouri’s constitutional provision went too far. One preschool playground is much like another, and, as Justice Breyer said in his brief concurrence, in the state’s refusal to award a grant to Trinity Lutheran while giving such grants to others, “the sole reason advanced that explains the difference is faith.”

Clearing the Weeds

In his admirably succinct opinion for the Court, Chief Justice Roberts deftly disposed of several bad arguments for the overturned provision. The state claimed, for instance, that it could not be faulted for failing to give the church a subsidy it was not obligated to provide in the first place. That would be a winning argument if it were the whole truth about what happened. But it’s not, as the chief justice explained:

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. . . . 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.

One of the unruly branches of religious liberty jurisprudence that the chief justice prunes is Locke v. Davey, a 7-2 ruling from 2004 in which the state of Washington’s denial of scholarship funding to students pursuing degrees in devotional theology—and to them alone—was upheld. Missouri argued in Trinity Lutheran that its exclusion of churches from its Scrap Tire Program was indistinguishable from Washington’s denial of financial support for college students whose majors point to careers in religious ministry. But Roberts held that Joshua Davey, the student in the Locke case,

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.

Justice Clarence Thomas, who had dissented in Locke, declared in his Trinity Lutheran concurrence that the precedent “remains troubling,” but he was glad to see the chief justice confine its reach. And Justice Neil Gorsuch, the newest member of the Court, expressed some doubts about the Locke precedent in his own separate concurrence. This is a branch that may one day be completely lopped off, which would not be a bad thing at all.

In the meantime, Trinity Lutheran is real progress against so-called “Blaine amendments”—state constitutional amendments, mostly from the late nineteenth century, many of which artfully employed the rhetoric of “separation of church and state,” chiefly in order to wall off the Catholic Church from access to any public funds to support its parochial schools, while permitting Protestant interdenominational consortia to tap those funds for their own schools. As Philip Hamburger explains, Missouri’s version of a Blaine amendment is written more broadly. But even such provisions, he notes, “are inescapably stuck in the mire of theological prejudice. The old animosity against the Catholic Church never entirely went away, but rather was generalized.”

The Dissent

Something of this generalized animosity to the place of religion in American society can be seen in the startlingly reactionary dissent of Justice Sonia Sotomayor, who was joined by Justice Ruth Bader Ginsburg. Considerably longer than Roberts’s opinion of the Court, Sotomayor’s dissent stakes out the amazing position that Missouri is not only permitted by the free exercise clause of the First Amendment to exclude churches from equal access to funding available to others; it is required to exclude them by the establishment clause. This is more than the state itself argued; its view was that the stricter separationism embodied in the state constitution could be squared with the free exercise clause. It never argued that its state constitution simply recapitulated a standard principle of the federal First Amendment.

But Justice Sotomayor evidently believes that the First Amendment has always contained the principle that James G. Blaine himself thought it lacked, and that he proposed an unsuccessful amendment to supply. The old-time religion of strict separationism has not had such a fervent adherent on the high court for many years.

It’s noteworthy that Justice Sotomayor could attract only one other vote for her view. Three years ago, Justice Kagan led the four liberal justices in a strong dissent from the Court’s Town of Greece v. Galloway ruling, on grounds that a town council’s practice of employing (chiefly Christian) local clergy to open its sessions with prayer was an unconstitutional establishment of religion. But Kagan joined the majority in Trinity Lutheran without comment, having nothing to do with Sotomayor’s impassioned dissent—a clear sign of how extreme the latter’s position is.

To be sure, Justice Sotomayor in her own way paid respect to the pervasively religious mission of Trinity Lutheran Church. The church, she said, “uses the Learning Center, including its playground, in conjunction with its religious mission.” She continued:

The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are [sic] integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable. . . . The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.

All the description here—though not the “inescapable” conclusion—may be happily conceded. A Christian preschool no doubt should see everything about its daily activities, indoors and out, as devoted to the glory of God and carrying out Christ’s Great Commission (without in the least detracting from its openness to and non-proselytization of children whose families do not practice its faith, if that is how it has chosen to operate).

But why should the preschool’s—and the parent church’s—religious mission be a reason to push it to the margins of the public square, denying it access to state funding that is not itself provided in furtherance of any religious purposes? This is a question that never occurs to Sotomayor. A playground is a playground is a playground. If the adults running the playground are moved to act on their love of children by their love of God, how is it just for the state to treat their playground as less deserving of subsidy for that reason?

In addition to citing an early-1970s establishment clause case on federal funding for colleges—a precedent looking more obsolete all the time—Sotomayor turned for support to one of the most famous documents in the American history of religious freedom, James Madison’s 1785 “Memorial and Remonstrance Against Religious Assessments.” But the law to which Madison objected could not be more different from the ruling to which Sotomayor objected. The Virginia legislation Madison helped to defeat had an avowedly religious purpose, of paying the ministers of religion out of the public treasury because of the state’s interest in sponsoring their ministries. But if Missouri is now to include churches’ preschool playgrounds in its resurfacing grant program, it is not because the state now sponsors their religious missions; it is because the state is interested, just as before, in safer playgrounds. That distinction makes all the difference.

A Bright Future for Religious Freedom

Already the Trinity Lutheran case is bearing fruit. The day after the decision, the Court vacated and remanded cases to two state supreme courts, concerning a state textbook program that excluded religious schools (in New Mexico) and a school voucher program that did likewise (in Colorado), for reconsideration in light of Trinity Lutheran.

And there may be more good news ahead. The Court has put Masterpiece Cakeshop v. Colorado Civil Rights Commission on the docket for its next term beginning October 2. This case gives the Court an opportunity to uproot a particularly noxious weed in the legal garden, when it considers whether strained theories of “discrimination” can trump the core principle of religious conscience.

Jack Phillips, the proprietor of Masterpiece Cakeshop in Lakewood, Colorado, in 2012 declined a request by two men to make them a cake for their wedding. Phillips was subjected thereafter to the tender mercies of the state’s Civil Rights Commission for having allegedly “discriminated” on the basis of the couple’s sexual orientation.

But Phillips engaged in no such discrimination. Perfectly willing to sell off-the-shelf items to all customers without any regard for (or indeed curiosity about) their sexual preferences or relationships, he simply refused, as a Christian, to employ his expressive and artistic gifts as a baker and cake decorator to help celebrate a union he cannot in good conscience consider a marriage. A stronger case of religious freedom—and of freedom of expression in tandem with it—can hardly be imagined. But in the new normal of religious believers being condemned as bigots for believing what their churches teach about marriage, suppression of such freedoms is increasingly common.

Ever since Obergefell v. Hodges imposed same-sex marriage on the whole country, the depredations on religious freedom predicted by the dissenters in that case have multiplied and accelerated. But Burwell v. Hobby Lobby was right that Christian business owners are protected in their religious liberty. And Justice Gorsuch is right, in his Trinity Lutheran concurrence, that the Constitution “guarantees the free exercise of religion, not just the right to inward belief (or status).” If this former clerk of Justice Kennedy’s can persuade his old boss that same-sex marriage and respect for freedom, conscience, and diversity can coexist, we may see the garden of religious liberty jurisprudence looking tidier still in the months to come.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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