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Symposium: The Constitution provides a level playing field for people of faith

Hillary Byrnes is Assistant General Counsel for the United States Conference of Catholic Bishops. She filed an amicus brief for the conference and other organizations in support of the church in Trinity Lutheran v. Comer.

Five years ago, Trinity Lutheran Church applied for a grant from Missouri’s Scrap Tire Grant Program so that it could resurface the church’s preschool playground with rubber material made from recycled tires, which is softer than the preschool’s current pea gravel playground surface. Trinity Lutheran sought the grant in order to provide a safer surface on which the church’s preschoolers – and any other children in the community, given the preschool’s after-hours “open gate” policy – could play.

Missouri’s Department of Natural Resources runs the grant program, which provides grants to nonprofit organizations like child care centers and schools, in order to make use of old scrap tires as well as improve children’s safety. The program is funded through a fee paid by anyone who buys new tires. Although Trinity Lutheran’s application to participate in the program easily scored high enough to receive a grant from the program, and qualified for it in all other ways, the department denied Trinity Lutheran a grant simply because its preschool is run by a church.

Yesterday, the Supreme Court correctly found that Missouri’s exclusion of Trinity Lutheran from the grant process constituted unconstitutional discrimination on the basis of religion. Chief Justice John Roberts, writing for the majority, stated that “[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. … [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” Roberts went on to hold that “[t]he 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 … and cannot stand.”

For people of faith, the Supreme Court’s decision marks a critical victory in trying to attain a level playing field when it comes to generally available public benefits. A 2016 study found that religion in the United States contributes a combined $1.2 trillion to the U.S. economy and society. Faith-based organizations have excellent track records in serving those in need, often at a much lower cost than the government.

Religious groups of all denominations and faiths often partner with government agencies in order to serve “the least of these,” given their faith-inspired missions, and governments often desire to work with faith-based groups to do the work that the government does not have the capacity or the local, trusted connections in the community to do. For example, local governments have partnered with Catholic Charities agencies to run homeless shelters and provide other services to people in need, especially when local municipalities have failed to run such programs successfully.

The Trinity Lutheran decision has short-term and longer-term effects for the faith-based community and religiously inspired organizations. First, and most immediately, it shows that faith-based institutions cannot be excluded from public programs solely because they are religious or are affiliated with a church in some way. This is important because some advocates before the court sought to exclude faith-based organizations from participating in publicly available government programs.

Roberts held that 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.”

Justice Samuel Alito had noted in oral argument that prohibiting religious organizations from participating in grant programs would make, for instance, houses of worship like synagogues or mosques ineligible to receive security grants from the Department of Homeland Security despite serious threats to their existence.

The court found in yesterday’s opinion that Missouri’s overly broad interpretation of Article 1, Section 7, of its state constitution discriminates against religious organizations. And Missouri’s “policy preference for skating as far as possible from religious establishment concerns” did not justify the “clear infringement on free exercise before [the Court].”

If the Supreme Court had failed to recognize and reject this straightforward discrimination based on religious status, the impact would have been acutely felt by faith-based organizations and the people they serve. For instance, our amicus brief points out that many faith-based hospitals rely on state funding as providers of last resort for underinsured and medically needy patients. Given the rising costs of health care, it is not surprising that nonprofit hospitals, including hospitals founded by religious orders, accept patients who have Medicare, Medicaid or other government-sponsored insurance plans.

Additionally, states implementing the federal Temporary Assistance to Needy Families program contract with faith-based as well as non-faith-based organizations to deliver housing, rehabilitation and food assistance to the underprivileged. Yesterday’s Supreme Court decision protects faith-based helpers – whether in healthcare, housing or other human services – from harm born of extreme separationist scruples and thus allows them to continue to serve the neediest among us.

In the longer term, the court’s decision could give a boost to advocates of school choice in their efforts to provide multiple options for parents to select among when educating their children. This is because the decision bars unduly broad interpretations of Blaine Amendments. Such amendments are named after James G. Blaine, a former Speaker of the House of Representatives who in 1875 promoted an amendment to the federal Constitution that would have, in part, banned public funds from going to schools “under the control of any religious sect.”

Blaine’s attempt at a federal Constitutional amendment failed, but almost 40 states have similar provisions in their state constitutions. Such provisions were passed predominantly in the latter half of the 19th century, and sprang from the nativist, anti-Catholic sentiment that prevailed at that time in the United States.

Blaine Amendments have stymied efforts in many states to create or expand voucher and scholarship programs that would allow parents to make the best choice for their children’s education, even though the court decided in Zelman v. Simmons-Harris in 2002 that an Ohio voucher program passed muster under the federal establishment clause. Yesterday’s decision makes clear that Blaine Amendments cannot be interpreted in a way that discriminates against religious institutions. Although Blaine Amendments are still on the books in dozens of states, their days of being used as a blatant tool of discrimination against faith-based schools appear to be numbered.

Justice Sonia Sotomayor’s dissent noted the potential effects of the decision on Blaine Amendments, stating that “[t]he constitutional provisions of thirty-nine States [are] all but invalidated today.” Although Trinity Lutheran brought an as-applied challenge to Missouri’s Blaine Amendment rather than a facial challenge, the court’s decision indicates that Blaine Amendments should not be construed as broadly as Missouri sought to construe its own.

Unfortunately, Sotomayor’s dissent, which goes into some detail regarding the history of state Blaine Amendments (although it does not use the word “Blaine” or discuss the federal attempt at a Constitutional amendment), fails to take into account the animus that played a major role in the passage of Blaine Amendments. Several justices in previous cases, such as Mitchell v. Helms and Zelman, have acknowledged and condemned the religious bigotry that gave rise to these state laws.

As partnerships between faith-based groups and federal, state and local governments to assist the most vulnerable among us grow to meet increasing needs in our society, people of faith need to have the freedom to serve the common good without fear of being disqualified from such service simply because they are religious. All qualified organizations that currently exist are needed to address the challenges our country faces in combating poverty, providing life-affirming health care and educating the young. In a pluralistic society, the beneficiaries of such services have the freedom to choose where they obtain the services, and government entities should not themselves discriminate between religious and non-religious service providers.

Yesterday’s decision by the court enables the work of faith-based organizations to continue, and perhaps even expand. The playing field has finally been leveled.

Recommended Citation: Hillary Byrnes, Symposium: The Constitution provides a level playing field for people of faith, SCOTUSblog (Jun. 27, 2017, 10:56 AM),