We live in confusing times to be sure with the fast-paced changes on the Internet, in technology, and even the location of one’s day-to-day office as it shifts from brick and mortar to the kitchen table. With so much happening at such breakneck speed, it is easy to lose sight of basic, decent principles; to put it another way, the chaos opens doors to misdeeds and evil. The Supreme Court’s recent decision interpreting the Free Exercise Clause in Trinity Lutheran Church v. Comer brings us back to some basic common sense.
Trinity Lutheran involved a church-based preschool and day center that wanted to improve its playground and applied to a Missouri state program that provided reimbursement grants for organizations that installed playground surfaces made from recycled tires. The state denied the grant according to state policy consistent with the state constitution to deny financial assistance directly to a religious organization. In other words, had Mom’s Best Daycare applied for the grant, it could have qualified. Trinity Lutheran was denied solely because it is religious.
Free Exercise at the Supreme Court: Some Basic Common Sense
The Court’s Trinity Lutheran decision is a short and straightforward 15 pages relying upon basic, modern Supreme Court decisions relative to the facts of this case: Everson v. Board of Education of Ewing, Lyng v. Northwest Indian Cemetery Protective Association, Employment Div. v. Smith, and Church of Lukumi Babalu Aye v. Hialeah. When these decisions are added together, they result logically in the reasoning of this case.
First, in Everson the Court held that a state could provide busing to private religious school students, translate: parochial, as well as public school students. That decision led to a long line of rulings by the Supreme Court that a state could supply other education-related materials to private religious schools when the same were being supplied to the public schools, e.g., books. Why? Because if the goal was the education of the state’s children, the state legitimately could support the education of all the state’s children. Therefore, the state can distribute math, science, history, and English textbooks to all schools whether run by secular or religious entities. To be sure, Everson did not hold that the state must provide busing to all students, but it planted the seeds to normalize the practice under the First Amendment. If playground scrap material was going to be denied to religious entities, Everson needed to be decided in the other direction.
Second, the Court in Lyng held that a decision by the federal government involving federally-owned land could not be defeated simply by a religious sect whose religious practices would be affected, even severely affected, by that decision. Where the government was acting out of neutral principles with a law that is generally applicable to all actors, religious or not, its decision stands. Religious entities today cannot be happy that the Lyng decision is invoked, because they hit their heads against the Supreme Court wall for decades trying to obtain mandatory accommodation from neutral and generally applicable laws, especially when the burden is as steep as it was in the Lyng case. But what Lyng holds is a vital part of the line of precedent that winds through these four cases and undergirds Trinity Lutheran: lawmakers can burden all or burden none, but their focus must be on regulating conduct itself, and placing the burden on all those who do the same thing equally.
Third, the Supreme Court’s 1990 decision in Smith held that the Free Exercise Clause does not establish mandatory accommodation from neutral and generally applicable laws. In other words, if a law applies to all who engage in particular conduct, it can apply to all, even if some of those people are religiously motivated. Those whose religious conduct conflicts with the law do not obtain an automatic or mandatory exemption under the Free Exercise Clause. Therefore, Native American Church drug counselors could be denied unemployment compensation, because they violated the state’s criminal law against the use of peyote—even if they used it in a religious ceremony for religious reasons. This is another case that did not by itself require the result in Trinity Lutheran but it was a necessary step to undergird its reasonableness.
Finally, Lukumi, on the heels of Smith, the Court held that a law that is not neutral and generally applicable is subject to strict scrutiny. In that case, an animal “sacrifice” law that applied to the Santerians but not to other religious actors killing animals was held not to be generally applicable. Therefore, strict scrutiny applied, and the City of Hialeah’s animal sacrifice law violated the Free Exercise Clause. In fact, Trinity Lutheran misinterprets the Lukumi decision by stating that it was decided on nondiscrimination principles. There were not five votes for that specific notion. Nonetheless, the spirit of Lukumi is that it is discriminatory to apply a benefit to one religious entity but not to others doing the same thing. The Missouri law did not discriminate between similarly situated religious actors, but between schools seeking a playground made of recycled tires the same on the basis of whether they were religious.
These cases paved the road to what should seem inevitable by the time Trinity Lutheran is decided: religious entities are engaged in conduct like everyone else. If a religious school wants a playground reimbursement but it cannot get it because it is religious, that violates the Free Exercise Clause. Missouri’s program was not generally applicable. The case reaffirms Everson, Lyng, Smith, and Lukumi, and reads them together sensibly.
While the Court has been working out a sensible free exercise doctrine that guarantees freedom and equality but refuses to create a special universe for the religious where they are unaccountable to the greater good, lawmakers at the federal and state levels have been playing with fire and riling up the worst instincts in American society with extreme religious liberty.
Free Exercise Over There: Legislators Muck It Up
The melee over religion in the United States today is occurring in the political arena, not in constitutional interpretation. It’s through passing Religious Freedom Restoration Acts that states are attempting to craft a legal apartheid for LGBTQ where they must shop, live, and nurture families without impinging on the lives of some believers who think they are sinful, and to suppress women’s reproductive rights. It’s in Hobby Lobby and other decisions interpreting these misguided statutes that are really special interest deals, not sound public policy. Those statutes can be repealed when more sensible politicians find their way into positions of power than those who pander shamelessly to religious entities for votes, regardless of who they harm. Trinity Lutheran is a constitutional interpretation that cannot be overturned by a mere majority vote.
Trinity Lutheran is not just about a playground, but rather summarizes the Supreme Court’s free exercise doctrine that tells lawmakers to focus their attention on regulating conduct and to place similar burdens and benefits on Americans without reference to religious identity. The decision bodes well to continue this common sense interpretation of the First Amendment in two cases pending at the Supreme Court: it puts President Trump’s ban on Muslim immigration in a bad light to the extent he singles out one religion for negative treatment, and it puts the baker who refused to abide by the public accommodations laws when it refused to bake a cake for a gay wedding in an unflattering light.
For those worried about the separation of church and state in the aftermath of this case, stay tuned.
Curious essay on this topic that doesn’t cite Locke v. Davey.
The bottom line is not what the state “can” do but what it “must.” The state here provided a stricter rule for funding of specific religious institutions such as churches and church schools. The opinion differentiated Locke v. Davey rather unconvincingly there.
The author has been concerned that religious institutions have received special benefits as to regulations, even when children welfare is at issue. This case does not change that. It — as the dissent says — keeps that special benefit but also mandates funding of special religious institutions. Traditionally, states found this troubling because in the process people are funding religions they oppose. Free exercise includes both discretion of institutional decision-making and not requiring non-believers to fund them.
The majority arguably drew a sensible line but the dissent had a strong rejoinder. This essay is too one-sided.