The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held 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."
A few initial thoughts:
1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.
It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.
Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs.
2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.
3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.
Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.
That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor 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? ... Often enough the same facts can be described both ways....
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.
For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey.... [C]an it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here.
Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.
Friday, June 23, 2017
Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform. With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed." The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards. You can read the "Justice Declaration" here.
Thursday, June 22, 2017
A short note on the feast-day of the martyr-saints John Fisher and Thomas More: I believe that the spiritual biography of Henry VIII has yet to be written, and may never be. There are a number of good secular and political biographies, and those are important and worthy. To understand the deep tap-roots of Henry's part in the English reformation, however, would in my view require a treatment of his spiritual degeneration. Perhaps syphilis and kingship and the Tudor character explain it all. Perhaps, however, something worse was at work.
Consider the nature of Henry's rage. When Paul III made Bishop John Fisher a Cardinal, seeking to protect him -- what decent Christian would lay hands on a Prince of the Church? -- the effect was the opposite of the intention. As the Catholic Encyclopedia recounts, "Henry forbade the Cardinal's hat to be brought into England, declaring that he would send the head to Rome instead." Who, or perhaps I should say what, could speak with such flippancy and relish of beheading a venerable priest? Who or what is so wicked and yet so childish?
Another example: I remember vividly a tour of Christchurch Priory in Dorset, the former domain of the Countess of Salisbury, a peeress in her own right, relative of kings and the last of the great Plantagenets. She is perhaps better known to Catholics as the Blessed Margaret Pole, gruesomely martyred by Henry in the Tower for refusing to abjure her son, Cardinal Reginald Pole, the last Catholic Archbishop of Canterbury. (I do not say "for the crime of refusing to abjure" because Henry in his urgency bypassed regular judicial procedure). The Countess was seventy years old, was hacked to death, and was buried in the Tower graveyard because Henry refused to allow her to be buried in her own chantry chapel at Christchurch Priory. Who or what could be so bitterly vengeful against an old lady, whose great fault was to be a faithful and loving mother?
Indeed, our tour guide at Christchurch Priory showed us the Countess' partially despoiled chantry chapel, and recounted -- English localities have very long memories indeed -- that Henry's men had come with specific orders to deface the decorations within the chapel, even the ones not visible from the ground. (The tale is confirmed by a letter from the King's Commissioner). Who or what would care to deface what is visible only to God? "What rough beast, its hour come round at last..."
The spiritual biography of Henry, then, would have to comprehend the nature and source of the malevolent rage that consumed him. A model might be Patricia Snow's explanation for the cold gleeful fury at the heart of Hilary Mantel -- and the Culprit might well turn out to be the same in both cases.
Tuesday, June 20, 2017
Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case. Here's a bit:
In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.
This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.
If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.
