Christopher Dunn
Christopher Dunn ()

Amid the tumult engulfing the White House and Congress, one easily loses sight of ominous developments emanating from the third branch of government. But the judiciary has been busy, and civil rights and civil liberties are under assault on many fronts. One of those fronts is the separation of church and state.

At the end of June, the Supreme Court concluded its term with a major decision mandating direct government financial support of churches. And on the same day it issued that ruling, the court accepted for review a dispute—over a wedding cake—that concerns the extent to which businesses have a religion-based constitutional right to refuse to cater to same-sex couples, raising the prospect of reigniting the conflicts of the 1950s and 1960s over the integration of restaurants, hotels, clubs, and other public accommodations.

Funding Religion

Separating government from religion was a central theme in the founding of the United States. As the Supreme Court explained in Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), a seminal case addressing government funding and religious activity:

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches … . With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed.

In light of this history, direct government funding of religious activity has been a constitutional and cultural flashpoint. In last month’s decision in Trinity Lutheran Church of Columbia v. Comer, 2017 WL 272410, 137 S.Ct. 2012 (June 26, 2017), the Supreme Court opened the door a crack to the claim that the Constitution not only permits but indeed requires direct religious funding.

To appreciate the significance of Trinity Lutheran, one must start with Everson, which presented a challenge to a New Jersey school board’s decision to fund bus transportation of students to schools, including to religious schools. A taxpayer sued, contending the funding was a government subsidy of religious education that violated the First Amendment’s prohibition against “an establishment of religion.”

The Supreme Court rejected this challenge. Recognizing that the Constitution protects the right to attend parochial schools, the court reasoned that general public-benefit programs that happened to benefit those engaged in religious activity did not arise to an establishment clause violation:

We cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools … . Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment.

Against this establishment clause backdrop, the court in 2004 turned to the constitutionality of a state’s refusal to fund religious education. At issue in Locke v. Comey, 540 U.S. 712 (2004), was a Washington state program that granted cash scholarships to a wide range of qualifying college students, including those attending religious colleges. But in light of a state constitutional provision barring use of taxpayer funds for religious activity, the scholarship program barred funding in one specific situation: “No aid shall be awarded to any student who is pursuing a degree in theology.” Unlike in Everson, the constitutional issue in Locke was not whether the government was barred (by the establishment clause) from providing financial support for religious study as part of a broader program but whether the government was required (by the free exercise clause) to include funds for religious study as part of a broader program.

In a 7-2 decision written by then Chief Justice William Rehnquist, the Supreme Court confronted the confounding intersection between the establishment clause and free exercise clause in the context of government funding. Starting its analysis at that intersection, the court identified what it characterized as the “play in the joints” between the two provisions:

The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses, the establishment clause and the free exercise clause, are frequently in tension. In other words, there are some state actions permitted by the establishment clause but not required by the free exercise clause.

This case involves that “play in the joints” described above. Under our establishment clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. As such, there is no doubt that the state could, consistent with the federal Constitution, permit Promise Scholars to pursue a degree in devotional theology, and the state does not contend otherwise. The question before us, however, is whether Washington, pursuant to its own constitution…can deny them such funding without violating the free exercise clause.

In answering this question, the court invoked the historical conflict over government funding of religious activity and noted that many state constitutions go farther than the federal Constitution: “[W]e can think of few areas in which a state’s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion.”

According to the court, the Washington state scholarship exclusion was permissible given that “[i]t imposes neither criminal nor civil sanctions of any type on religious service or rite,…does not deny ministers the right to participate in the political affairs of the community, … [a]nd it does not require students to choose between their religious beliefs and receiving a government benefit.” In a typically pointed dissent, however, Justice Antonin Scalia focused on the fact that the scheme singled out religious pursuit from a general public-benefits program and contended that this amounted to express religious discrimination that could not survive any meaningful First Amendment scrutiny.

Which brings us to the Supreme Court’s recent decision in Trinity Lutheran, in which the court swung toward Scalia’s approach, albeit with one large caveat. At issue there was a Missouri grant program to public and private schools, nonprofit daycare centers, and other nonprofit entities to purchase rubber playground surfaces made from recycled tires. The Trinity Lutheran Church Child Learning Center had qualified for one of these grants for its playground, only to be excluded on the basis of a state constitutional provision that—as in Washington state—barred use of public funds to support religious activity.

In contrast to Rehnquist’s approach to the Washington scholarship program in Locke, in Trinity Lutheran the court (in an opinion by the current Chief Justice John Roberts) characterized the Missouri program as “expressly discriminating against otherwise eligible recipients by disqualifying them from a public benefit because of their religious character.” It then laid out an analysis directly at odds with Locke: “It is true the department has not criminalized the way Trinity Lutheran worships or told the church that it cannot subscribe to a certain view of the Gospel. But, as the department itself acknowledges, the free exercise clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” In light of this, the court held that the Missouri disqualification was subject to “strict scrutiny” and that the state’s claimed interest in avoiding an establishment clause problem—dismissively characterized by the chief justice as the state’s “policy preference for skating as far as possible from religious establishment concerns”—was insufficient to meet that standard.

As for Locke, the court did not expressly overrule it but instead purported to distinguish it on the grounds that that case dealt with a prohibition on what the student “proposed to do—use the funds to prepare for the ministry” while in Trinity Lutheran the prohibition “was because of what it is—a church.” In addition, the “claimant in Locke sought funding for an essentially religious endeavor akin to a religious calling,” while “nothing of the sort can be said about a program to use recycled tire to resurface playgrounds.”

Newly minted Justice Neal Gorsuch concurred but expressed doubt about the “stability” of a line distinguishing religious use from religious status. Justice Sonia Sotomayor, who has become the Justice Scalia of the left, penned an impassioned, nearly 7,000-word dissent, contending the court had profoundly changed the relationship between church and state by “holding, for the first time, that the Constitution requires the government to provide public funds to a church.”

Finally, there is the caveat, and it is a big one. The very first sentence of the majority opinion reads, “Chief Justice Roberts delivered the opinion of the court, except as to footnote 3,” and that footnote reads, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” In other words, given the positions of the various justices, all of the anguish over compelled government funding of religion boils down to a decision effectively limited to its rubber-playground facts.

Shielding Discrimination

On the same day the Supreme Court opened the door to claims to mandated government church funding in Trinity Lutheran, it agreed to consider whether businesses can claim religion-based exemptions to anti-discrimination statutes. Masterpiece Cakeshop v. Colorado Civil Rights Commission (No. 16-111), which the court agreed to hear on June 26, arises out of the refusal of a cake company to prepare a wedding cake for a same-sex couple (represented by ACLU colleagues of mine). That refusal prompted an administrative complaint to the agency charged with enforcing state law barring discrimination in public accommodations, with the agency finding that the cake refusal violated that law. In the Supreme Court, the cake company contends that application of Colorado’s public-accommodations law to its refusal violates the company’s First Amendment rights, including claimed rights under the free exercise clause. (In April 2014 the court declined to review a similar case out of New Mexico involving a wedding photographer.)

The conflict between individual rights of expression, religion, and conscience on the one hand and government authority to bar discrimination by businesses catering to the public on the other was the source of enormous tension and even violence in the 1950s and 1960s. At that time, our primary social conflicts were over race, religion, and gender, and the courts were emphatic in rejecting challenges to public-accommodations statutes.

Future Implications

Now, the primary cultural war we are experiencing is over sexual orientation. Last week, President Donald Trump raised the stakes enormously with his Twitter announcement that transgender persons would be barred from the military and with the filing of his Justice Department’s brief in an upcoming U.S. Court of Appeals for the Second Circuit en banc case where DOJ has taken the position that the primary federal statute barring discrimination in employment—Title VII of the Civil Rights Act of 1964—does not reach discrimination on the basis of sexual orientation. Those actions, coming on the heels of the Supreme Court decision in the wedding-cake case to consider “religious refusals,” raise the prospect of a return to some our country’s most divisive moments.