Victory For Religious Liberty

I’m sure every 2L and 3L remembers Constitutional Law class – and for the 1Ls reading this, be prepared – and the lists of landmark cases chosen to represent the thinking of courts at the time. We have United States v. Lopez for the commerce clause, Hamdan v. Rumsfeld for executive powers, Chaplinsky v. New Hampshire for free speech, and many others. These cases are often dated, opinions written by justices long dead and background issues long forgotten to obscurity. However, after reading so many landmark decisions one can get a sort of sixth sense about these things. Watching the various decisions handed out by the current Court, occasionally a decision is handed out that the future generation of USD 1Ls will read about and yet another justice that will join the pantheon of Marshall, Holmes, both Harlans, and Scalia.

Such is the sort of case we have in front of us, argued in April and decided this summer – right on time for Justice Neil Gorsuch to take part in the arguments. Trinity Lutheran Church of Columbia, Inc. v. Comer revolves around a religious liberty question, namely the constitutionality of so-called Blaine Amendments. The Missouri Constitution stipulates “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion,” and such amendments were commonplace in the late 19th and early 20th centuries as a means to keep public money from going to Catholic institutions. The dispute arose when the Trinity Lutheran Church applied for a state grant to refurbish its playground with rubber matting from recycled tires. The program was in wide use by such playgrounds, but the state of Missouri denied the otherwise qualified applicant solely because it was a religious institution. The lower courts ruled in favor of the state Department of Natural Resources, so the church appealed to the Supreme Court and it granted certiorari.

The final result was decisive, and not close at all. All in all, the Court ruled seven to two to overrule the Eighth Circuit and enter a judgement in favor of Trinity Lutheran, striking down the Missouri Constitution’s Blaine Amendment as unconstitutional under the free exercise clause. This was the absolutely correct decision, and a great and landmark win for religious liberty. The individual breakdown was as follows: the official opinion by Chief Justice John Roberts, joined by Justices Kennedy, Thomas, Alito, Kagen, and Gorsuch; a separate concurrence by Justice Breyer; a concurrence by Thomas, joined by Gorsuch; a concurrence by Gorsuch, joined by Thomas; and a dissent by Justice Sotomayor, joined by Justice Ginsburg.

In his majority opinion, Justice Roberts characterized Missouri’s denial of funds as blatant discrimination against religion, writing “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’” Trinity Lutheran Church of Columbia, Inc. v. Comer 582 U.S. __, (2017); (quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972)). In whether the state met that burden he distinguishes it from Locke v. Davey, where the Court in the 1990s found that a state’s denial of funds for a student to pursue a theological degree was constitutional. Trinity Lutheran’s inability to obtain the funds was due to discrimination on its status as a religious institution, not for the religious purpose, and thus the state’s actions violated the First Amendment.

What is most telling regarding further litigation on the subject comes from Justice Neil Gorsuch’s concurring opinion. As with Justice Robert Jackson’s in the Steel Seizure case, I believe this opinion will serve as the baseline for further jurisprudence on religious liberty decisions. While joining most of the Chief Justices majority opinion, Gorsuch takes issue with a block of text called Footnote Three: “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.” According to Harvard lawyer and noted commentator Ben Shapiro, “It’s clearly meant to limit the scope of the case as closely as possible — to allow the court to sneak out of the opinion if it doesn’t like the activities in which churches participate under ‘free exercise.’”

Justice Gorsuch refuses such a cop out as part of what is in all other parts a sweeping decision expanding the right to free exercise of religion. “Respectfully, I harbor doubts about the stability of such a line…” Gorsuch writes. “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?” In this statement, we see incredible foresight by Gorsuch in how future religious freedom decisions will be litigated. The crux of the argument is that the Court has made clear that the blocking of a secular activity by a religious group simply because it is a religious group – this was at contention in that case, and Trinity Lutheran prevailed that it could not be blocked from a general use state program since it was a church. However, Footnote Three’s limiting clause creates a legal loophole that governments and secular groups can use to continue to restrict religious liberty. Gorsuch alludes to the case where the general use program is denied not because the applicant is a religious person, but because the activity is religious in and of itself. For example, if a church seeks to get a widely used after school program funding mechanism for a class of its own, the state could deny the funding simply because the church’s class includes bible verses. Or as the Justice describes the paradox: “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner?”

Boiled down to it, Gorsuch correctly sees no distinction – that religious exercise is constitutionally protected against government discrimination no matter what manner they are presented. “After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status).” He rejects the ruling in Locke v. Davey, stating “But can it really matter whether the restriction in Locke was phrased in terms of use instead of status?” The state of Washington in that case didn’t fund religious degrees, it funded degrees in general, and there was no constitutional basis to bar the student from pursuing his chosen educational path due to a distinction between use and status. It is in this concurrence that we see Justice Gorsuch’s star power emerge. As with Justice Jackson in Youngstown, he has no problem with the majority decision in the matter, but can identify a crucial legal problem that the ruling creates. Whether a church can get a state grant to improve a playground may seem narrowly tailored, but with such a contentious issue such as this even the most obscure case will inevitably be cited. Possessing this foresight, Gorsuch’s concurrence – joined by Clarence Thomas, who wrote a similar concurrence endorsing Gorsuch’s opinion and denouncing Locke even more strenuously: “This Court’s endorsement in Locke of even a ‘mil[d] kind,’ of discrimination against religion remains troubling.” – serves to break free of the attempt of the majority to craft a narrow opinion and produce a precedent to protect religious liberty and free exercise long into the future.

In my humble reading of the political trends, Gorsuch’s pro-freedom of religion mindset is clearly on the upswing. (Justice Sotomayor also sees this trend, as given the biting words of her dissent against upholding Trinity Lutheran’s right to free exercise). Currently, only three Justices on the Court can be considered rock solid on these grounds, Gorsuch, Thomas, and Samuel Alito – Chief Justice Roberts mostly reliable, Anthony Kennedy a swing vote, Breyer and Elena Kagen sometimes voting in favor – while Justices Sotomayor and Ginsburg remaining hostile to the concept. However, both Kennedy and Ginsburg are over eighty years of age, with Breyer not close behind. It is not a stretch to say their service on the Court is coming to an end fairly soon, and judging by his appointment of Gorsuch, President Donald Trump is likely to appoint someone of a similar mindset. This bodes well for the free exercise of religion, for the shadow of government discrimination on people of faith shrinks as Gorsuch’s concurrence will approach the level that Jackson’s concurrence did.

Trinity Lutheran is a landmark victory for religious liberty and the Constitution, and I for one will be excited to read how it is covered in future law books.

-Alex Behzade-

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