Fred Yarger is the solicitor general of Colorado. He filed an amicus brief for the state in support of the church in Trinity Lutheran v. Comer.
Although it represents a significant victory for religious liberty, Trinity Lutheran Church of Columbia, Inc. v. Comer does not appear to alter fundamentally how the First Amendment will be understood and applied in cases involving claims of religious freedom. Instead, it reflects broad consensus from the Supreme Court, but only on the answer to a narrow question: Can an organization be excluded from a generally available public benefit program solely because of its religious character? At oral argument, that question was put in plainer language. Justice Stephen Breyer, for example, asked it this way: “does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection, but not churches?”
Framed in those terms, Trinity Lutheran was an easy case for seven members of the court. It has long been true that the government cannot single out religious people or groups for unfavorable treatment. The majority simply applied that longstanding rule to the facts at hand. The result is that Missouri cannot exclude churches from a program that uses public funds to make playground surfaces safer for school children. As Chief Justice John Roberts wrote in his majority opinion:
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. 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.
Certainly, the opinion was noteworthy because it applied this rationale to circumstances in which a government would be required to make payments directly to a church, rather than through an intermediary such as an individual grant recipient. But several members of the court emphasized just how narrow they understood the Trinity Lutheran decision to be. In a footnote, three justices explained that the case involves only “express discrimination based on religious identity” and only “with respect to playground resurfacing.” In his concurring opinion, Breyer cautioned that “public benefits come in many shapes and sizes”; he declined to say whether “other kinds of public benefits” may be subject to the anti-discrimination principle. We can assume that benefits programs similar to Missouri’s – those that carry with them no apparent hint of religious endorsement when applied to churches – will be subject to the same anti-discrimination rule. But the fact that four justices took such pains to narrow the scope of the decision hints that deeper disagreements may lurk in the background.
For example, what is to be done about the provision of the Missouri constitution that led to this dispute? That provision is a so-called “Blaine” amendment, similar to those in dozens of other states, which prohibits the state from giving any “aid” to a religious institution. A plurality of the court, in the 2000 decision Mitchell v. Helms, said that Blaine amendments were enacted out of “hostility to the Catholic Church” and should be overturned. In its briefing, Trinity Lutheran gave the court the opportunity to address the fate of Blaine amendments. It argued that the Missouri constitutional provision that led to the denial of its playground-resurfacing grant application has a historical connection to “religious bigotry” that “carries over to the present,” and it thus cannot be used to justify exclusion of religious entities from grant programs. Several amici made similar points. Had it seen fit, then, the court could have said that a government’s reliance on Blaine amendments is categorically impermissible.
The court did not go nearly that far, however. Indeed, neither the majority opinion nor any of the three concurring opinions even mentioned the term “Blaine amendment,” although the subject came up several times during argument. The majority merely held that, whatever the basis for religious discrimination, it cannot be justified by a “policy preference for skating as far as possible from religious establishment concerns.” This suggests that Blaine amendments can remain on the books, at least for the time being. Trinity Lutheran held only that governments cannot rely on Blaine amendments alone to justify exclusion of religious entities from public benefits programs. They must cite some other, more substantial state interest. That is nothing new, and the court’s decision not to address the issue assures that the fate of Blaine amendments will continue to be litigated in the lower courts.
The potential for another simmering disagreement revealed itself in the concurring opinion of Justice Neil Gorsuch, joined by Justice Clarence Thomas. The majority focused its analysis on discrimination based on religious identity, deciding only that the First Amendment prohibits identity-based discrimination in public benefits programs. That, of course, suggests that discrimination based on religious conduct – and, specifically, conduct that a public grant program might facilitate – could lead to a different outcome. Gorsuch and Thomas were dubious of that distinction. They “harbor[ed] 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?
Justices Gorsuch and Thomas do not believe the distinction should matter. In their view, “It is free exercise either way.”
Some court watchers predicted – or perhaps hoped – that the Trinity Lutheran majority would adopt this broader view. Doing so may well have had a more wide-ranging effect on First Amendment jurisprudence. For example, some amici expressed concern about state and local efforts to promote school choice through scholarships that may be redeemed at religious schools. Those efforts have led to near-constant litigation nationwide, much of which has focused on the conduct of the school that receives public money.
For now, Trinity Lutheran reaffirmed a basic constitutional principle: Governments cannot single out people or groups just because they are religious. Seven justices can agree on that. Whether they can agree that the principle extends to other contexts – some perhaps more controversial than a scrap-tire program – is anything but clear.