The U.S. Supreme Court recently agreed to review the Eighth Circuit's decision in Trinity Lutheran Church v. Pauley. At first blush, this case does not promise the same religious fireworks as some of the Court's recent cases, such as the widespread challenges to the HHS contraceptive mandate by religious orders like the Little Sisters of the Poor and businesses like Hobby Lobby. On closer examination, however, Trinity Lutheran raises serious and contested questions about anti-religious discrimination, and more specifically the extent to which the Constitution restrains the government from excluding religious organizations from participation in public benefit programs.
Trinity Lutheran shows that important legal questions can blossom from the smallest seeds. The case concerns a Missouri program that grants funds for the installation at private schools of playgrounds made from recycled tires. Trinity Lutheran, which is a church that runs a day care center, applied for grant funds to convert its pea gravel playground (which presented safety hazards for children) into a safer poured rubber playground. The state declined the church's application, however, based on a provision in the Missouri Constitution that forbids any “public funds” from aiding, directly or indirectly, any “church, sect, or denomination of religion.”
That provision is from one of a number of so-called “State Blaine Amendments,” provisions that crept into a many state constitutions in the late 19th and early 20th century. They were inspired by a failed amendment to the federal Constitution sponsored by Maine senator and presidential candidate James G. Blaine. Both in their federal and state versions, Blaine amendments were transparently anti-Catholic. The terms of these provisions were designed to seal off all public funds from Catholic schools, which were commonly referred to at that time as “sectarian” or “denominational” schools. (Many articles have been written about the State Blaine Amendments, including one I wrote in the Fordham Law Review).
Today, of course, the federal Establishment Clause allows fairly broad funding of private religious schools—provided those funds are part of a genuinely “neutral” program and end up at religious schools through private individuals' choices. But the state Blaine Amendments, which persist today in numerous state constitutions, erect a far more formidable barrier to public money flowing to any religious organization. Hence the problem in Trinity Lutheran: whereas the federal Establishment Clause poses no obstacle to the church participating in the “Scrap Tire Grant Program,” the Missouri Constitution categorically bars participation of any the grant applicant who is a “church” or some other religious organization.
Trinity Lutheran challenged its religion-based exclusion from the grant program under the Free Exercise Clause, and one would have thought its case was bullet-proof. After all, the Missouri Constitution excluded it from the program only because it was a religious institution; a day care run by a secular institution would have qualified for the grant. That appears to be rank religious discrimination, invalid even under the modern free exercise test adopted in Employment Division v. Smith because it does not “neutrally” treat religion. Yet the federal Eighth Circuit upheld the exclusion, based on a problematic U.S. Supreme Court decision from 2004 called Locke v. Davey.
Locke held that the Free Exercise Clause was not offended by a Washington scholarship program that prohibited funding majors in “devotional theology.” The 7-justice majority opinion (authored by Chief Justice Rehnquist) reasoned that states have a strong interest in preventing public funds from being used to educate ministers, even in the context of an otherwise neutral program. As authority for that point, the majority drew on the founding-era hostility to taxes earmarked for ministers' salaries (most famously expressed by James Madison in his “Memorial and Remonstrance”).
Whether that historical analogy holds water is only one of Locke's problems. A bigger problem is whether Locke implicitly gave permission to states to engage in religious discrimination that goes beyond a refusal to fund “devotional theology” degrees. Justice Scalia's dissent was concerned about exactly that: he warned that, while Locke's holding was “limited to training the clergy,” its logic was “readily extendible” to other kinds of funding programs and could serve as a pretext for broad discrimination against religious persons and groups.
Thus, what is immediately at stake in Trinity Lutheran is the breadth of Locke. A 3-2 split among the lower courts is presumably what led the Court to review the case. Some lower courts had, like the Eighth Circuit, read Locke broadly and have relied on the decision to justify state exclusion of religious schools from educational funding and scholarship programs, based purely on the religious character of the schools. In a superb opinion in Colorado Christian University v. Weaver, then-Tenth Circuit Judge Michael McConnell correctly explained that Locke is far narrower than those courts imagine and cannot justify excluding schools from neutral funding programs based on their religious identity. Such religious discrimination should virtually always violate the Free Exercise Clause.
One hopes that in Trinity Lutheran, the U.S. Supreme Court carefully reviews Judge McConnell's opinion in Weaver and reaches a similar result. Short of overruling Locke (which the certiorari petition does not seek), it is imperative to limit Locke as closely to possible to its historical basis in the denial of government funds for training ministers. A broad reading of Locke could have severely negative consequences for the ability of religious institutions and persons to participate in public benefit programs.
For instance, it could justify restrictions barring “pervasively sectarian” schools from participating in student aid programs, or restrictions on bond financing for religious institutions. It could be used as a pretext for excluding religious people from competition for government contracts, from tax exemptions, or from student loans. None of these exclusions would be justified by any rigid principle of “separation of church and state” in the federal Establishment Clause; over the past decades the Supreme Court (assisted by excellent historical scholars like Michael McConnell, Douglas Laycock, and Philip Hamburger) has happily disentangled its jurisprudence from such ahistorical notions. It would be deeply unfortunate, then, if states or the federal government could use the dubious reasoning in Locke to justify religion-based restrictions on participation in public programs. In Trinity Lutheran, the Supreme Court has the opportunity to clarify that such restrictions are anathema to the Free Exercise Clause.
This post originally was posted on the Federalist Society website, February 6, 2016