Various Interpretations of First Amendment in Trinity Lutheran Case By Daniel Tagliarina
This piece is part of ongoing analysis of the Supreme Court’s ruling in Trinity Lutheran Church of Columbia Inc. v. Comer. Previously I explained how Roberts’ majority opinion argued the Free Exercise Clause requires Missouri to make their playground resurfacing program open to religious organizations, and not just secular organizations. He argues the state discriminated against Trinity Lutheran just because they were a religion, and that is unacceptable. Roberts only briefly discusses Establishment Clause concerns, and simply to dismiss them quickly. This post examines the other opinions justices authored in this case.
The Supreme Court has previously addressed a Free Exercise Clause challenge to a state denial of funds for a religious purpose in keeping with a state constitution. Washington State had a scholarship program that gave scholarships to students meeting certain requirements. The scholarship could be used at parochial colleges, but the funds could not be used to pay for devotional theology degrees. Joshua Davey won one such scholarship, but wanted to use it to pursue a degree in pastoral ministries. He challenged the program as violating the Free Exercise Clause. The Court, in 2004, ruled in his case, Locke v. Davey, that no such violation occurred and Washington State had valid concerns in not funding religious training.
Part of the Court’s ruling in Trinity Lutheran involved explaining why Locke v. Davey does not support Missouri’s similar argument. Roberts argues that Locke was not about state funds supporting religions—as it has often been interpreted—but rather was about the narrow idea that the state does not pay to educate religious leaders. Thomas writes a separate opinion, joined by Gorsuch, to say he wishes the Court could go further and overturn Locke, but that question was not before the Court in Trinity Lutheran. Thomas and Gorsuch want to go further than Roberts in eliminating the so-called wall of separation between church and state.
This desire was on display in Gorsuch’s separate opinion as well. Gorsuch takes issue with how Roberts distinguishes Locke from Trinity Lutheran. Gorsuch strongly suggests that Roberts is wrong to separate out the purpose for state funds—in Trinity Lutheran looking at playground safety—regarding any grant of state funds to a church. For Gorsuch (joined by Thomas), the Constitution does not forbid state money being given to support religious institutions regardless of the purpose for the funds. This is a sharp break from previous cases and general practices regarding the relationship between church and state. While Roberts further blurs the line of separation between church and state, Thomas and Gorsuch seek to further eliminate this distinction.
Where Roberts skirts the Establishment Clause issue, Sotomayor (joined by Ginsburg) addresses it head on in her dissent. Roberts makes Trinity Lutheran a case about a generally applicable state benefit (state funds for resurfacing a playground). Sotomayor, however, frames the case as about “…whether Missouri can decline to fund improvements to the facilities the Church uses to practice and spread its religious views.” This framing not foregrounds questions of church-state relations, it takes seriously how Trinity Lutheran portrays the importance of the daycare and its playground for the church’s religious instruction.
Using the church’s own words, Sotomayor shows that the playground, and all that the church does, cannot be separated from the proselytizing efforts of the church. According to Sotomayor, the Court has embraced the direct financial support of religious instruction. This is a clear change in how the Court has historically treated questions of financial support of religion. It is also a clear dismantling of the separation of church and state.
Sotomayor also engages in a thorough review of the history of establishment efforts in the pre-and-post- First Amendment United States. She puts the religion clauses in the First Amendment into their proper historical context, and demonstrates both why we have these clauses, but also why they were meant to prevent the type of financial support the Court allows in the present case.
Sotomayor goes on to discuss the reasons why the U.S. has tended towards an embrace of the separation of church and state. She explains that funding religion from state coffers implicates Establishment Clause concerns, as well as Free Exercise Clause concerns for all tax payers, whose funds are used to support religions potentially different than their own. Sotomayor harkens back to the separationist ideals of voluntarism and separatism, I've previously discussed. She also invokes Madison in arguing that the blending of religion and politics is detrimental to what is special and important about both. Moreover, quoting Madison, Sotomayor articulates the concern that laws that require state funds to directly support a religion lend the same justification to other forms of establishment. This raises future concerns over increased blending of church and state as the “wall of separation” crumbles.
On its surface, Trinity Lutheran really does look like a case about whether the state should keep all kids safe, even on church-owned playgrounds. Breyer treats the case this way, and Roberts wants us to view the case as narrowly about this non-sectarian issue. Gorsuch and Thomas reveal that the Court’s logic can very easily extend much further than this, and they want the Court to go that direction. Sotomayor warns the Court is already on that path, to the detriment of both the state and religion. It is hard to see this as just about playgrounds or safety, which five justices in this case acknowledge.
While Roberts’ opinion tries to make the case about common sense regarding safety and funds for non-religious purposes, I argue it is a mistake to view the case so narrowly. Sotomayor’s opinion engages in the important historical and analytic work that shows why we should be cautious, and why we have historically been cautious, about overt combinations of church and state.
The ramifications of this case are likely to be much broader than Roberts’ opinion claims he wants them to be. In my next post I will discuss what these ramifications might entail as the Court has agreed to hear a case about whether bakers can refuse services to same-sex couples seeking wedding cakes. Regardless of the outcome in that case, Trinity Lutheran will be a big part of the legal discussion. Trinity Lutheran is not just about playgrounds, and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission will not just be about cakes.
Daniel Tagliarina is Assistant Professor of Government and Pre-Law Adviser at Utica College