The Trinity Lutheran Decision

Missouri established a program offering reimbursement grants to qualifying nonprofit organizations that installed playground surfaces made from recycled tires.  Trinity Lutheran Church ran a preschool and daycare center on its property and applied for a grant, but Missouri’s Department of Natural Resources rejected the church’s application because Article I, Section 7 of the Missouri Constitution provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” The church challenged its exclusion as a violation of the Free Exercise Clause, and the U.S. Supreme Court agreed in an opinion that gives religious liberty interests priority over state interests in preserving church-state separation.

Locke v. Davey: May states insist on greater separation of church and state than the federal Constitution requires?

The Supreme Court’s current understanding of the Establishment Clause provides a good deal of room for including religious institutions in general government grant programs.  However, nearly every state has an analogous provision in its state constitution, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause.  What happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?

That is basically the question in Trinity Lutheran, but the Supreme Court faced it once before thirteen years ago in Locke v. Davey. There, Joshua Davey lost a college scholarship when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.”  Davey argued that expressly excluding pastoral training from the scholarship program violated the Free Exercise Clause.

The Supreme Court disagreed by a vote of 7 to 2.  Writing for the Court, Chief Justice Rehnquist explained that there was “play in the joints” between the Free Exercise and Establishment Clauses.  Just because the state could have funded Davey’s training for the ministry without violating the Establishment Clause didn’t mean that its failure to do so violated the Free Exercise Clause.  There are many ways to read Locke, but one key theme is its emphasis on federalism and the deep historical roots of separationism, particularly in the context of tax money being used to support the training of clergy.

Separationism Equals Discrimination

Lower courts have not had frequent occasion to interpret Locke, but for the most part they have read it to mean that states have a good deal of leeway to insist on a greater degree of church-state separation than the Establishment Clause requires.  Relying on Locke, the Eighth Circuit had ruled against Trinity Lutheran.

The Supreme Court reversed.  Significantly, Justice Roberts’s opinion for the Court ruled that Locke’s framework was inapplicable since Joshua Davey was denied a scholarship because of what he “proposed to do” (i.e. study devotional theology), whereas Trinity Lutheran was denied “simply because of what it was – a church.”  As Justice Gorsuch pointed out in his concurring opinion, this effort to distinguish between religious status and religious choices is unconvincing.

Having distinguished Locke on this basis, Justice Roberts then applied strict scrutiny to Missouri’s decision to deny the church’s grant application.  In other words, the Court analyzed Missouri’s separationist exclusion of Trinity Lutheran – based on its own constitution – under the same standard that would be applied to, e.g.,  an express ban on Muslims entering the United States.  Whereas Locke could be read to say that separationism and religious discrimination were horses of a different color, the Court’s opinion suggests that in most contexts, the Court will view separationism – a view it once wholeheartedly embraced – as a kind of religious discrimination.

Conclusion

Justice Roberts’s opinion suggests that Locke will be read narrowly in the future, thus we seem headed toward a world in which states will have little or no leeway to adopt a more separationist approach than the current Supreme Court’s.  Indeed, the day after announcing its decision in Trinity Lutheran, the Court vacated for reconsideration several state court decisions excluding religious schools from grant programs because of separationist language in state constitutions.

Cases like Locke and Trinity Lutheran can be seen as pitting the rights of religious claimants to participate in government benefit programs against the rights of taxpayers not to support religions with which they disagree.  Trinity Lutheran leaves little doubt about which claims the Supreme Court will favor in the future.

In the funding area, the Court’s repudiation of separationism is nearly complete. The governing law, Zelman v. Simmons-Harris and Mitchell v. Helms, means that few obstacles remain to including religious programs within even-handed government funding schemes. In fact, the Court recently granted certiorari on a case that may often require the state to include religious entities as beneficiaries in even-handed funding programs. Justice Scalia was a critical member of the (often 5-4) majorities that produced this shift, though he did not write the principal opinions.

Scalia’s voice has been more prominent in the Court’s contraction of Establishment Clause standing, which has reinforced the Court’s move toward a more permissive approach in the funding cases. The normal rule is: taxpayers lack Article III standing to object to the government’s allegedly unconstitutional uses of their money. In Flast v. Cohen, the Court created an exception granting taxpayers standing to raise Establishment Clause challenges to Congressional spending. Flast appeared to rest on a pragmatic judgment that Establishment Clause constraints on government spending would be ignored if plaintiffs lacked standing to enforce them, and accordingly lower courts took Flast as a signal to readily grant standing to Establishment Clause plaintiffs.

While the Court had previously signaled that Flast was not boundless, two cases decided in the past decade have more sharply limited Flast. In Hein v. Freedom from Religion Foundation, the Court ruled that plaintiffs had no standing under Flast to challenge conferences on faith-based social services that were funded from general executive branch appropriations. A three-vote plurality opinion by Justice Alito distinguished Flast, but Scalia would have gone further and simply overruled Flast. He reiterated this position in Arizona Christian School Tuition Organization v. Winn, where the Court again narrowed Flast by denying taxpayers standing to challenge a program of $500 tax credits for taxpayers who donated money to scholarship funds for private, mostly religious schools. For Scalia, Establishment Clause funding cases should be governed by the general rule that taxpayer-objectors to government uses of their money raise only a nonjusticiable generalised grievance. Both on the merits and on standing, his views leave little room for judicial decisions barring even-handed state financial support for religious institutions. Whether the Court takes the final steps away from separationism in funding cases will depend on Justice Scalia’s successor, but it is difficult to see the pendulum swinging far in the other direction at any time in the near future.

The rules banning government religious speech have also been relaxed, but the changes here are far less complete.  All agree that the present law is unsatisfying. On the one hand, long-standing doctrine – government action must have a secular purpose, government cannot endorse religion – points toward very strict limits on government religious speech. On the other hand, the Court has clearly been unwilling to push these principles to their logical conclusions. Examples of this reluctance include: state-sponsored prayer in K-12 school contexts is unconstitutional, but legislative prayer is generally constitutional; Ten Commandments displays have been ruled unconstitutional in school classrooms and in a Kentucky courthouse, yet constitutional on the Texas state capitol grounds.

Here, the shift from Justice O’Connor to Justice Kennedy as median Justice is significant. O’Connor had devised the “endorsement test,” which (in theory, if not always in practice) severely restricts government religious speech, but Kennedy has never embraced the endorsement test and it no longer commands a majority on the Court. Observers believe a sea change is coming, and prior to Scalia’s death it had seemed likely that the Court might move in the direction Scalia had charted in his Lee v. Weisman and McCreary County dissents.

For Scalia, the key principles that ought to determine government religious speech cases are: government may not coerce (i.e. legally compel) religious observance; noncoercive government religious speech should conform to an American tradition of being reasonably nonsectarian, which Scalia famously glossed in McCreary County as allowing the government to endorse “monotheism;” in any close case, the traditions of the American people are a better guide to the meaning of the Establishment Clause than judge-created doctrinal tests; and truly private religious speech can never violate the Establishment Clause, even in contexts where most people would mistakenly believe the government was speaking.

These principles command much popular support, and prior to Scalia’s passing they probably commanded four Justices’ votes. Kennedy’s refusal to completely embrace at least the first two has prevented them from becoming law thus far, but the Court’s trajectory may have been pointing toward Justice Scalia’s ultimate destinations. (It is also possible that stricter standing requirements in government religious speech cases, as signaled in Scalia’s Salazar v. Buono concurrence, might move case outcomes in Justice Scalia’s preferred direction even without radical changes in the substantive rules.) With Justice Scalia’s passing, the future of the law on government religious speech is much more open, and his successor may have a dramatic impact on what shape that future will take.

Justice Scalia’s single most significant church-state opinion, Employment Division v. Smith (1990), holds that the First Amendment is not violated when “neutrally and generally applicable laws” burden religious exercise. To understand why Smith was such a momentous decision, this blog (briefly) reviews (some of) the history leading to Smith.

The most difficult question in free exercise law is how to treat situations where a law passed for legitimate secular purposes burdens religious exercise. Should courts be empowered to grant religious exemptions under these circumstances, or should exemptions be solely a matter of legislative discretion (subject to limits imposed by the Establishment Clause)?

When Scalia joined the Court, the leading cases of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) ostensibly entitled claimants to an exemption from any law that “substantially burdened” their religious exercise unless the government could prove that denying the exemption was the least restrictive means to serve a compelling government interest. This sounds like strict scrutiny, but apart from Yoder, Sherbert, and a handful of unemployment compensation cases following Sherbert, religious claimants lost in every free exercise case to reach the Supreme Court between 1963 and 1990.

Smith presented the question whether Native Americans who ingested peyote as their central religious ritual were entitled to a free exercise exemption from Oregon drug laws. Under Sherbert/Yoder, the claimants had a strong argument that Oregon drug laws substantially burdened their practice, and the key issue in the case was whether making an exception here would undermine the state’s drug enforcement scheme.

Instead of focusing on this question, Justice Scalia rejected the Court’s Sherbert/Yoder jurisprudence as a sham. The Court had not been willing to adhere to its purported strict scrutiny standard in practice because genuine adherence to that standard would make every religious believer a law unto herself. To avoid this result, the Court had in fact engaged in ad hoc balancing – weighing religious interests against government interests case-by-case in an intuitive search for the “right” amount of religious-liberty protection. The religious side of the balancing process was especially problematic. Courts asked whether burdens were “substantial” or burdened practices were “central” to a believer’s faith because to treat every believer’s claim of religious burden as demanding significant government justification would create anarchy. Efforts to weed out some claimed burdens, however, put courts in the position of second-guessing believers about their own faiths – a practice the Court’s own case law had condemned in unequivocal terms. Smith limited Sherbert and Yoder to their facts – not very convincingly, some would add – and proclaimed a new rule: courts would no longer grant religious exemptions from neutral, generally applicable laws. Religious claimants burdened by neutral laws would have to seek solace from legislatures.

In these highly polarised times, much is inevitably (and justifiably) made of Scalia’s “conservatism” and possible doctrinal changes that might follow in the unlikely event President Obama succeeds in appointing his successor. To be sure, progressives can assail Smith as a “politically conservative” opinion. In one (for some) notorious passage, Scalia wrote that while leaving religious exemptions to the discretion of the legislature would inevitably place minority religions at a disadvantage, this was an “unavoidable consequence of democratic government.” Progressives might contrast this unfavourably with Justice Jackson’s famous statement that the “very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy.” Yet while the left once perceived Smith as “anti-minority,” the right saw the case as insensitive to claims of religious liberty quite generally. These perceptions led to overwhelming bipartisan support for the Religious Freedom Restoration Act (RFRA) (1993), which purported to overrule Smith. On religious exemptions, Scalia’s political conservatism mattered less than his conception of the judicial role. Not the role of “judge as seeker of original meaning” – for Smith is bereft of originalist argument. Rather, Scalia’s fundamental concern in Smith was that the Sherbert/Yoder regime prevented judges from acting as judges, whether they used their power to aid religion or to hinder it.

The most fractious questions of religious liberty today concern the statutory religious liberty regimes (i.e. the federal RFRA and its state analogues) that arose from dissatisfaction with Smith. Controversies related to changing social norms about sexuality have led some progressives to suggest that, in practice, RFRAs are beginning to prove far more protective of religious interests than Sherbert and Yoder ever were, to the detriment of gender equality and gay rights. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court squarely rejected arguments that requiring a closely-held corporation to provide health insurance covering certain contraceptives was not a substantial burden. The Court will next decide whether even filling out a form stating religious objections to providing contraception is a substantial burden. It appears that in reading RFRA, the Court has taken seriously at least some of Justice Scalia’s worries about balancing religious and state interests: the Court appears to be headed toward the conclusion that “substantial burden” imposes no meaningful limit on the sorts of religious claims that might warrant government accommodation.

But when Scalia wrote Smith, his view was that courts’ inability to draw lines among claimed religious burdens meant that courts should not be granting religious exemptions at all. Today some progressives appear to be taking that message to heart, and the ideas in Smith are perhaps more attractive to the left today than they were when Smith was decided. I’m not sure Justice Scalia would have been pleased about that, but perhaps one indicator of a Justice’s influence is that his legacy can develop in unexpected directions.

Editorial Note: This is the latest post in the OxHRH series on how Justice Scalia’s judicial approach and reasoning has influenced rights-based protections across significant areas of the law.