How Roberts Blurs Church and State in Trinity Lutheran Case By Daniel Tagliarina
Previously I analyzed various opinions issued by the Court. Trinity Lutheran Church of Columbia, Inc. v. Comer, In this post I take a closer look at the separation of church and state issues that arise from this case.
The importance of this case for our understanding and practices regarding the separation of church and state is fully acknowledged within this case, but only by the Justice Sotomayor (joined by Justice Ginsburg) in her dissenting opinion. Chief Justice Roberts largely ignores the implications of the case for church state relations as he attempts to read the case, and his ruling narrowly on the subject matter of the case. But, before we can fully dive into the specifics, it would be helpful to first take a brief, broader view of the Court’s position on church-state relations.
As I stated in my initial post about this case, Trinity Lutheran involves the balance between the Establishment Clause and the Free Exercise Clause. The Court needs to balance how best to avoid state establishment of religion without impinging upon the free exercise of one’s religious beliefs. For a long time this balance has been represented by tensions between “accommodationist” approaches and “separationist” approaches. The Court has variously embraced these competing principles.
Accommodationist approaches try to accommodate religions by taking a permissive view of the Establishment Clause, but a more restrictive view of the Free Exercise Clause. This allows most benefits to religion, seeing them not as violations of the Establishment Clause. Accommodationists are also not likely to favor free-exercise based exemptions from laws. Accommodationists support a majoritarian approach to religious practice, where the state supports religion generally treating everyone the same, regardless of circumstance.
Separationists try to create sharper divisions between church and state. Separationists believe the Establishment Clause, properly understood, prohibits the government from providing most benefits to religion, especially direct financial benefits. They also believe that the Free Exercise Clause should be understood to allow most exemptions for individuals to practice their faith freely.
Separationists take a much more individual approach to religion, trying to keep the government from directly or indirectly supporting religions, but also keeping the government from imposing upon individuals’ religious practice. The government is supposed to stay out of religious affairs, and not impinge on individual’s religious choices.
In the Court’s first major Establishment Clause case of the twentieth century the justices articulated the separationist approach, while writing Jefferson’s “wall of separation” into Supreme Court case law. In the 1947 case, Everson v. Board of Education, the Court upheld New Jersey’s practice of reimbursing parents for the cost of busing children to both public and private religious schools, arguing the expenditures to parochial schools do not violate the Establishment Clause. Justice Black, looking at the original intent of the Establishment Clause, argued that the framers favored, in Jefferson’s words, “a wall of separation between church and state.” The Court struck a separationist tone, even when it allowed state funds to, indirectly, support parochial education.
For Black in Everson, the key is “voluntarism” and “separatism.” Voluntarism requires churches to advance through the voluntary support of its adherents, not through state funds or support. Separatism embraces the idea that both religion and government are better off without an entanglement of the two. Thus, the separationist approach is about keeping religion and politics separate for the benefit of both religion and politics.
All of this brings us back to, and creates the conditions for assessing, Trinity Lutheran. Writing for the Court, Roberts tries to treat this case as only about the Free Exercise Clause. He does this by focusing only on questions of Missouri’s alleged discrimination against Trinity Lutheran as a religious institution.
Focusing solely on this question ignores the competing question of what level of support can, or should, the government provide to a religious institution. Avoiding this question is odd given that Missouri defended its decision not to provide funds to Trinity Lutheran on its state constitution’s commitment to avoiding the establishment of religion. Roberts addresses this issue only far enough to argue that it is not a compelling government interest that would allow for discrimination on the basis of a group’s status as a religious institution.
His discussion of Everson is limited to its implications for the Free Exercise Clause, mentioning the case exactly once in his opinion. Thus, he takes an accommodationist view of the Establishment Clause, but claims to be discussing only the Free Exercise Clause (where his opinion is arguably not accommodationist, but not separationist either).
By ignoring Establishment Clause concerns, Roberts’ opinion for the Court greatly blurs the divisions between church and state. Roberts argues that the state must provide “generally available public benefits” to religious institutions on the same conditions as secular institutions. This means that, as is the case with the playground resurfacing program, the state must provide benefits to religious institutions even if this comes in the form of direct financial support—a statement that is in direct opposition to the Court’s justification in Everson.
In Everson the Court allowed the New Jersey program to continue as the benefits went to the parents in pursuit of the public good of child safety (Rehnquist makes a similar argument in favor of school vouchers when writing for the Court in Zelman v. Simmons-Harris regarding the indirect financial support when money goes to families and not to religious institutions). Such is not the case here.
Roberts’ opinion, therefore, seems to greatly expand the types of benefits states must offer to religious institutions, in direct opposition to separationist ideals and the very idea of the wall of separation of church and state. Roberts tries to limit this impact by noting, in the footnote that Thomas and Gorsuch refuse to join, that this opinion is only about the specific benefit at issue in this case (for now, at least). It is highly unlikely this limitation will last long.
Daniel Tagliarina is Assistant Professor of Government and Pre-Law Adviser at Utica College.