The Supreme Court ended its 2016 Term with a case at the intersection of the two halves of the Religion Clause of the First Amendment: States may not penalize individuals or groups for their religious character (Free Exercise Clause), nor may they subsidize or promote religion (Establishment Clause). Neutral treatment of churches and other non-profits provided the common ground. A seven-Justice majority held that no one—whether individual, group, believer, non-believer, church, or other organization—can be penalized for their religion, or lack of it, by denial of a secular benefit to which they would otherwise be legally entitled. As the opinion by Chief Justice Roberts put it: “[T]he exclusion of [the petitioner] from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution, . . . and cannot stand.”
The decision was nearly—but not quite—unanimous. Two Justices thought it went too far; three Justices thought it did not go far enough. A footnote confined the reach of the holding to “express discrimination based on religious identity” and declined to address “religious uses of funding.” No doubt that footnote will inspire further litigation in the years to come.
The facts of the case are uncomplicated. The State of Missouri has a program that collects discarded automobile tires and recycles the material into a rubberized surface for playgrounds, reducing the danger of scraped knees or broken arms when kids fall from the play equipment. Because there is more demand than supply, the State ranks qualifying non-profit playgrounds according to objective criteria such as the poverty level of the children in the area. Trinity Lutheran Church Child Learning Center, a church-based day care facility, ranked fifth among the 44 applicants, but was excluded because of a provision in the Missouri Constitution stating that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” Trinity Lutheran challenged its exclusion under the Free Exercise Clause of the First Amendment. The State defended on the ground that its state constitutional provision preserves the separation between church and state.
Unfortunately, relevant Supreme Court doctrine was anything but uncomplicated, and the day care center lost in the lower courts. Over the course of many decades, the Supreme Court had handed down many cases that came close to this one, but none that was on all fours. The Court had held:
- It violates the Free Exercise Clause to discriminate against a church or other entity based on its religious character, in connection with regulatory programs. (That principle did not cover Trinity Lutheran because the discrimination in this case was in a benefit program rather than a regulatory program.)
- It violates the Free Speech Clause to deny otherwise available public benefits to religious (or non-religious) speakers based on the religious (or non-religious) content of their speech. (That principle did not cover Trinity Lutheran because rubberized playground surfacing is not about speech.)
- It violates the Free Exercise Clause to deny an individual a generally available benefit to which they would otherwise be entitled, such as unemployment compensation, because of their exercise of religion. (That principle did not apply because Trinity Lutheran is a church, not an individual.)
- It violates the Establishment Clause for a state to provide financial benefits to religious organizations on a preferential basis. (That principle did not apply because Trinity Lutheran was eligible for the program on the basis of neutral and objective criteria.)
- It does not violate the Establishment Clause for states to extend general public benefit programs to religious organizations on a neutral basis, at least where the benefit is of a secular nature. (Rubberized playground surfacing falls within this principle, but that means only that including the church would not violate the Establishment Clause; it does not necessarily mean that excluding the church would violate the Free Exercise Clause.)
- States are not required to create subsidy programs of a religious nature. For example, states are not required to teach theology at a public university just because they teach philosophy, or to fund scholarships for training for the ministry whenever they fund scholarships for secular professions. (That principle did not apply here because the State had already created the playground rubberization program and the only issue was who could benefit from it.)
From these previous holdings, which are well settled, it was just a small step for the Court to hold in Trinity Lutheran that it violates the Free Exercise Clause for the state to exclude an organization from participation in an otherwise neutral public benefit program solely because of its religious character. The decision nonetheless brought welcome clarity to an area of constitutional law that is susceptible to confusion and demagoguery.
The separation of church and state has never required that churches be cut off from all the benefits of tax-funded government programs. Churches can receive the protection of police and fire departments; church-related hospitals can be funded through Medicare and Medicaid; students at religious colleges and universities can use government-funded loans and scholarships. The historical focus of church-state separation was on forcing taxpayers to support churches as such—that is, to give churches financial aid to which other comparable secular organizations are not eligible. The Court’s nearly unanimous decision in Trinity Lutheran is a welcome reminder that church-state separation is a principle of neutrality, not of hostility toward religion.
The Court did not have to decide whether a state could impose special restrictions on religious recipients to ensure that public benefits are not used or “diverted” to religious purposes. Rubberized playground surfaces do not raise that problem. Three of the Justices would have gone farther and held that as long as aid is given on an entirely neutral basis, it does not matter how the aid is “used.” That may be the correct principle, but the facts of Trinity Lutheran did not require the Court to go there.
The Trinity Lutheran decision is a sign that the judiciary has not become infected with the hyper-partisanship that now seems to infest the political branches. Regrettably, the freedom of religion has become a flashpoint in the political-cultural wars. The Supreme Court has been a welcome exception. In the last decade, with the sole exception of the difficult Hobby Lobby case about Obamacare’s contraceptive mandate, which divided the Court 5-4, every important constitutional case about religious freedom has been either unanimous or nearly so. Maybe the right of all Americans to the free exercise of religion is above politics, after all.
Michael W. McConnell is the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, and a Senior Fellow at the Hoover Institution. He served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit (2002-2009) before joining the faculty at Stanford.