One more big fissure has been opened up in the wall of separation between church and state. As Justice Sotomayor (for herself and Justice Ginsburg) wrote in dissent today:
This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.
For generations, the basic rule when it came to the separation of church and state was that the government could not fund any religious entities or programs. That wall developed some cracks over the years, with decisions holding that a school district had to provide a sign language interpreter to a deaf student at a Catholic high school as part of a federal aid program, or that governments could choose to fund religious programs as part of an overall school tuition voucher scheme.
In the latter case, the court reasoned that it was effectively the parents, not the government, choosing to fund these schools, and government’s purpose in having the voucher program was not the advancement of religion. Two years later, though, the court again recognized that there was “play in the joints” between the Establishment and Free Exercise Clauses, holding in a 7-2 decision that states could choose to not fund students pursuing devotional theology degrees as part of a neutral aid program, to avoid advancing religion.
Today, the court went one step further, constraining the reach of that 7-2 precedent and instead holding that the State of Missouri is required to include religious schools in a state program which provides grants to nonprofits to allow them to resurface their playgrounds with recycled tires. Missouri’s objection was rooted in a state constitutional provision, passed in 1875 as part of a general anti-Catholic wave across the country, which stated that no money from the state treasury could go “directly or indirectly, in aid of any church, sect, or denomination of religion.”
The chief justice wrote for the court, joined by Justices Kennedy, Alito, and Kagan in full; by Justices Thomas and Gorsuch for the most part (and get to used to hearing this: “though they would have gone further”), and Justice Breyer for separate reasons. In addition, the court announced today that they are taking up the case of whether Colorado can compel a bakery to make a cake celebrating a same-sex marriage.
As Justice Sotomayor put it during oral argument,
Well, there is a tradition. There are 39 States with constitutional amendments like the one Missouri has. That's a history that's even longer than the Locke history. And the essence of that history is, basically, we don't want to, as a country -- well, the vast majority of States, to fund houses of worship. One would think that if there's play in the joints, that that would include the concept that States are free to say we don't want to spend money from the public fisc on houses of worship.
Now, you say this affects free exercise. We seem to be confusing money with religious practice. I don't think the two are tied. This church is not going to close its religious practices or its doors because its playground doesn't have these tires. So I'm not sure how this is a free-exercise question, because there is no effect on the religious beliefs. No one is asking the church to change its beliefs. In fact, no one is asking the church as a condition of saying don't use what we give you for religious purposes; they're not even doing that. They're just saying we don't want to be involved with the church.
But, as the chief justice argued in the Opinion of the Court Monday:
It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” […]
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 “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s]the exercise of First Amendment rights.” 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.
And the court distinguished this case from Locke v. Davey, the ministry scholarship case, on the following narrow terms:
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.
And because “only a state interest “of the highest order” can justify the Department’s discriminatory policy,” it must fail. “The consequence is, in all likelihood, a few extra scraped knees. 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.” In a footnote, the chief justice adds, true to his general minimalist bearings:
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.
And that’s where Justices Thomas and Gorsuch fly off the rails a bit. Because while they otherwise agreed with the majority, they’d go further, both calling into question whether Locke v. Davey was correct in the first place, and:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. 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)….
I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.
Moreover, they assume that the next case will go further:
Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.
Justice Breyer, in a short concurrence, said he would have decided this matter more narrowly:
I agree with much of what the Court says and with its result. But I find relevant, and would emphasize, the particular nature of the “public benefit” here at issue. … The Court stated in Everson that “cutting off church schools from” such “general government services as ordinary police and fire protection . . . is obviously not the purpose of the First Amendment.” Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference. The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith. And it is that last-mentioned fact that calls the Free Exercise Clause into play. We need not go further. Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.
Which leaves only Justices Sotomayor and Ginsburg in dissent, and to them this is a big deal:
Properly understood then, this is a case about whether Missouri can decline to fund improvements to the facilities the Church uses to practice and spread its religious views. This Court has repeatedly warned that funding of exactly this kind—payments from the government to a house of worship—would cross the line drawn by the Establishment Clause. So it is surprising that the Court mentions the Establishment Clause only to note the parties’ agreement that it “does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program.” Constitutional questions are decided by this Court, not the parties’ concessions. The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission. The Court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents[….]
The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.
And such separation is deeply rooted in our history:
Those who fought to end the public funding of religion based their opposition on a powerful set of arguments, all stemming from the basic premise that the practice harmed both civil government and religion. The civil government, they maintained, could claim no authority over religious belief. For them, support for religion compelled by the State marked an overstep of authority that would only lead to more. Equally troubling, it risked divisiveness by giving religions reason to compete for the State’s beneficence. Faith, they believed, was a personal matter, entirely between an individual and his god. Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily. Over and over, these arguments gained acceptance and led to the end of state laws exacting payment for the support of religion…
They see grave danger in the new test set up by the court:
The Court offers no real reason for rejecting the balancing approach in our precedents in favor of strict scrutiny, beyond its references to discrimination. The Court’s desire to avoid what it views as discrimination is understandable. But in this context, the description is particularly inappropriate. A State’s decision not to fund houses of worship does not disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns. That does not make the State “atheistic or antireligious.” It means only that the State has “establishe[d] neither atheism nor religion as its official creed.” The Court’s conclusion “that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence.”
At bottom, the Court creates the following rule today: The government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome. Not the Religion Clauses, as they protect establishment and free exercise interests in the same constitutional breath, neither privileged over the other. Not precedent, since we have repeatedly explained that the Clauses protect not religion but “the individual’s freedom of conscience,”—that which allows him to choose religion, reject it, or remain undecided. And not reason,because as this case shows, the same interests served by lifting government-imposed burdens on certain religious entities may sometimes be equally served by denying government-provided benefits to certain religious entities
And they kinda sorta agree with the Breyer concurrence … to a point:
To fence out religious persons or entities from a truly generally available public benefit—one provided to all, no questions asked, such as police or fire protections—would violate the Free Exercise Clause. This explains why Missouri does not apply its constitutional provision in that manner. Nor has it done so here. The Scrap Tire Program offers not a generally available benefit but a selective benefit for a few recipients each year. In this context, the comparison to truly generally available benefits is inapt.
And as to Justices Gorsuch and Thomas, Justices Sotomayor and Ginsburg sound the trumpets in alarm:
In the end, the soundness of today’s decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. It is enough for today to explain why the Court’s decision is wrong. The error of the concurrences’ hoped-for decisions can be left for tomorrow.See, for now, School Dist. of Abington Township v. Schempp, 374 U. S.203, 226 (1963) (“While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs”).
Leading to the Big Finish:
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan,not a constitutional commitment. I dissent.
There were no retirements announced today. Thank goodness.