Editor's Note :

Editor's Note :

We expect orders from the June 26 Conference on Tuesday at 9:30 a.m. We will begin live-blogging at 9:15 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law & Religion at Michigan State University College of Law.

On its face, Trinity Lutheran Church v. Comer does not appear to have anything to do with school vouchers. After all, the primary issue in the case is whether a state can deny, pursuant to its state constitution, a grant to a church school under a program that awards funds to qualifying entities that use recycled material to resurface playgrounds. Yet, at its core, the Trinity Lutheran decision is about requiring states to include religious entities in public benefit programs generally open to other entities. Despite a suggestion to the contrary in the dissenting opinion, Trinity Lutheran may very well open the door to requiring state and local governments to include religious entities in voucher programs.

The Trinity Lutheran decision explains that:

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.

In other words, the holding in Trinity Lutheran reflects the notion that once the government opens up a “public benefit,” it cannot deny that benefit to a religious entity based on that entities’ religious nature. Moreover, a state cannot rely on its own state constitution – or on any other state interest – to deny religious entities access to a public benefit, because according to the court any such denial violates the free exercise clause of the U.S. Constitution. If all “public benefits” that might qualify for this protection were as innocuous as playground resurfacing, Trinity Lutheran would seem an eminently reasonable decision. After all, denying access to funding for a primarily secular benefit simply because of the religious status of the entity seeking funding would smack of discrimination against religious entities and would seem an obvious violation of the free exercise clause. Yet, where is the line to be drawn between public benefits that qualify for such protection and those that do not?

The answer to this question is of colossal importance because it raises the specter of an earlier Supreme Court decision, Zelman v. Simmons-Harris. That decision held that a school-voucher program did not violate the establishment clause even when 96.4 percent of voucher recipients under that program went to religious schools that were free to proselytize. I have written elsewhere about the many problems with the Zelman opinion, from its mischaracterization of precedent to its use of an illusory concept of formal neutrality.

Most importantly, after Zelman, parents living in states or school districts that provide vouchers for private school attendance, but who do not want their children to be proselytized, may have few options. In many parts of the country most private schools, especially those that can afford to take students under voucher programs, are religious and often highly subsidized by their parent churches. The amount included in voucher subsidies often precludes smaller religious schools and nonreligious schools from participating.

In Zelman, the court upheld the program despite the fact that more than 96 percent of voucher students attended religious schools of only one or two denominations, ironically because that attendance was deemed to be based on “true private choice.” Meanwhile, parents who had religious objections to sending their kids to these religious schools could do little, as funds were sucked out of their children’s already failing schools, leaving their children further behind. Their only hope would be to win a lottery for spots at a magnet school (assuming their child qualified) or for one of the few decent charter schools available. The court’s attempt to whitewash the numbers by including these public options was a great illusion, but in the end many parents were stuck with the choice of sending their children to failing public schools that would now be losing more funds and students or sending their children to religious schools of different faiths that were free to proselytize directly or by long-term exposure, in some cases risking the children’s eternal souls from the parents’ faith perspective or increasing the odds that the children will deny their faith (or lack of faith).

Still, a question left open in Zelman was whether government must fund religious entities when it opens up a generally available funding program. Until Trinity Lutheran the answer was unclear. It now seems that Trinity Lutheran may be used to expand the rule in Zelman from a “may” to a “must,” so that state and local governments will now have to include religious schools in voucher programs, or other programs, for fear of violating the free exercise clause.

There are two possible bulwarks against this result in Trinity Lutheran, neither of which gives me much confidence that the opinion will be limited to exclude voucher programs from its reach. First, is footnote 3 in the “majority” opinion.

Footnote 3 reads:

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.

Footnote 3 was the only part of the opinion not joined by Justices Neil Gorsuch and Clarence Thomas, and therefore it only commanded a plurality of justices. It does seem, however, that Justice Stephen Breyer, who concurred only in the judgment, and Justices Sonia Sotomayor and Ruth Bader Ginsburg, would agree with the potential limiting principle in footnote 3.

On its face, footnote 3, combined with some other statements in the majority opinion, seems to limit the ruling to programs that have no direct religious content. If that were the case, there is at least a chance that Trinity Lutheran could not be used to force state and local governments to include religious schools in every program, including those that may lead to government funds being used to send students to schools that may proselytize them, even if through the supposed private choice of parents. Yet, how much footnote 3 limits the broader holding in Trinity Lutheran is unclear, especially given some of the strong language used in the majority opinion suggesting that excluding religious entities from “public benefit” programs based on the fact that they are religious entities is inherently discriminatory.

The other possible bulwark arises from the way in which Justice Sotomayor’s dissenting opinion characterizes the majority opinion. She suggests that the majority opinion applies only to direct-aid cases and therefore would not apply to cases involving indirect aid programs such as the one in Zelman. In fact, in footnote 2 of the dissent, she makes this explicit by mentioning Zelman itself.

Perhaps I am missing something – and I hope I am – because I am writing this the day the Trinity Lutheran opinion was handed down, but having read the opinion several times now, I do not see the direct-aid limitation as an inherent component of the decision. The decision appears to apply to “public benefit” programs regardless of whether they are direct or indirect aid programs. It doesn’t seem to matter whether the church school argues it is excluded from a program that involves lump-sum grants or one that relies on the choices of parents, so long as it is excluded because it is a church school. I hope Justice Sotomayor is correct and that my fears of a Zelman requirement, rather than a Zelman option, are misguided.

Quite honestly, if it were not for Zelman I would welcome the decision in Trinity Lutheran. The idea that government should not be allowed to discriminate against religious entities’ access to aid that has no religious content, such as playground safety, is welcome. Yet in the world wrought by Zelman, Trinity Lutheran seems far less innocuous. After Zelman students who do not want to be proselytized and parents who do not want to sacrifice their children’s eternal souls for a voucher to go to a religious school that may try to convert them away from their own faith (or nonfaith) may be forced to accept substandard education in schools that have been further drained of funds and students due to a voucher program.

One final note. Nothing in the court’s opinion suggests that denying a religious school funding under a no-funding provision like the one in the Michigan Constitution, which prevents funding to any private school whether religious or not, would be unconstitutional. In fact, such provisions do exactly what the court asks. They avoid denying funding along religious lines, and only deny funding based on a distinction between public and private entities regardless of the religious or non-religious nature of those entities.

Petition of the day

By on Jun 26, 2017 at 10:22 pm

The petition of the day is:


Issues: (1) Whether a statutory program that requires an agency to distribute benefits to “socially disadvantaged individuals,” and defines “socially disadvantaged” in terms of membership in certain racial minority groups, classifies on the basis of race and is thus subject to strict scrutiny; and (2) whether a statute that may not classify exclusively on the basis of race, but uses race as a factor in determining eligibility for benefits, is subject to strict scrutiny.

Today’s orders (part 2)

By on Jun 26, 2017 at 9:56 pm

This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, Neil Gorsuch.

Gorsuch dissented from the court’s denial of review in Mathis v. Shulkin, in which the justices had been asked to review a rule created by the U.S. Court of Appeals for the Federal Circuit to use in cases involving disabled veterans who are seeking compensation for disabilities that they suffered while they were serving in the armed forces. The Federal Circuit applies a presumption that the medical professionals whom the Department of Veterans Affairs uses to evaluate these disabled veterans are competent to provide their opinions on any medical issues, which – veterans argue – then imposes a difficult burden on disabled veterans to show that the examiners are not in fact competent.

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Menu of today’s content

By on Jun 26, 2017 at 8:22 pm

Here is an overview of today’s case coverage:

6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board.

11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii.

1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of Columbia v. Comer.

2:52 p.m.: John Elwood reviewed relists for today’s final conference of the term.

3:51 p.m.: Mark Walsh provided a “view” from the courtroom for today’s orders and opinions.

4:02 p.m.: Kevin Johnson covered the court’s ordered reargument in Sessions v. Dimaya and Jennings v. Rodriguez.

4:23 p.m.: Amy Howe analyzed the court’s opinion in Hernández v. Mesa.

7:17 p.m.: Amy Howe covered today’s order list.

8:21 p.m.: Ronald Mann analyzed the court’s opinion in California Public Employees’ Retirement System v. ANZ Securities.

Molly Runkle also rounded up early outside coverage and commentary on today’s orders and opinions.

We are also hosting a symposium on the court’s ruling in Trinity Lutheran v. Comer. Our first contributions come from Erin Morrow Hawley, Leslie Griffin and Nathan Diament.

Posted in Everything Else

Involving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy writing for the narrow majority.

The issue in the case involves the right to opt out of a class action: When representatives file a class-action proceeding, any of the members of the class are entitled to “opt out” and represent themselves. The question in this case is how statutes of limitations work in that situation. Does the filing of the main class action count as the filing for the individual that opts out or does the party that wants to opt out have to file its own complaint before the deadline? The Supreme Court has addressed a similar question before, in its 1974 decision in American Pipe & Construction v. Utah. The court held in that case that the class complaint did count as the claim of the individual claimants for purposes of statutes of limitation; specifically, it held that the class complaint “tolled,” or suspended, the statute of limitations so that the individual’s later complaint was timely.

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Today’s orders (part 1)

By on Jun 26, 2017 at 7:17 pm

It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last week’s private conference, and the list included some orders that would likely be front-page news on any other day. After a whopping 14 relists, the Supreme Court announced that it will review the case of a Colorado man who contends that requiring him to make wedding cakes for same-sex marriage celebrations would violate his religious beliefs. The court declined, however, to take up an important California gun rights case, over a dissent from Justice Clarence Thomas that was joined by Justice Neil Gorsuch.

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Nathan J. Diament is the Executive Director for Public Policy of the Union of Orthodox Jewish Congregations of America. He filed an amicus brief on behalf of the union in support of the church in Trinity Lutheran v. Comer.

Seventy years ago, in Everson v. Board of Education, the U.S. Supreme Court rejected an establishment clause challenge to the state of New Jersey spending tax dollars to support schoolchildren traveling safely to and from schools – including Catholic parochial schools. Justice Hugo Black famously wrote for the court that the establishment clause “requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.”

Today’s ruling in Trinity Lutheran v. Comer reaffirms this fundamental principle and repudiates the argument of those who have invoked the “separation of church and state” to discriminate unfairly against houses of worship and other religious institutions in government funding programs. (Only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented to assert that view.)

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Leslie C. Griffin is William S. Boyd Professor of Law at the UNLV Boyd School of Law.

Seven of nine Supreme Court justices voted for Trinity Lutheran Church today, in Trinity Lutheran Church of Columbia v. Comer. The court ruled that Missouri’s decision to deny TLC state funding for its church playground violated the free exercise clause.

The seven justices oversimplified the case. Chief Justice John Roberts’ opinion for the court stated quite straightforwardly that to deny funding simply because an institution is a church violates free exercise and is “odious to our Constitution.” The state’s rule was simple, he wrote, “No churches need apply.” And that rule was unconstitutional.

Justices Clarence Thomas and Neil Gorsuch concurred separately. Gorsuch described the case simply as “discrimination against religious exercise.” Both men distanced themselves from Roberts’ footnote 3, which offered a possible although unlikely limit on the extent of the opinion. According to this note, “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.” Apparently the two justices were avoiding any limits on the future power of free exercise to help religion.

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Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law. She filed an amicus brief for the General Council of the Assemblies of God in support of the church in Trinity Lutheran v. Comer.

Although somewhat controversial, today’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer was far from unexpected. The case languished on the docket for over a year – under the common assumption that the justices were split 4-4 and were therefore awaiting a new member of the court. But oral argument revealed a Supreme Court that was surprisingly hostile to the idea that a state can refuse to allow a church to participate in a public program simply because it is a church.

Today, the Supreme Court resolved any remaining doubt about its views on that question, holding firmly that a state may not deny an otherwise publicly available benefit to a church or religious nonprofit because of its faith.

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It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandez’s family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandez’s right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts’ rulings dismissing the family’s lawsuit, but their case survived – at least for now. Acknowledging that the facts outlined in the family’s lawsuit “depict a disturbing incident resulting in a heartbreaking loss of life,” the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

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