Jul 06, 2016

Editor’s Note: This is the second of a two-part blog post by Carmen Green, a Madison Fellow in AU’s Legal Department. The first post is available here.

Yesterday, Americans United filed a friend-of-the-court brief in Trinity Lutheran Church of Columbia, Inc. v. Comer (formerly called Trinity Lutheran Church of Columbia, Inc. v. Pauley), which is pending before the U.S. Supreme Court. We did so because the case could dramatically increase the amount of state money given to religious organizations and in doing so, could undermine core tenets of religious liberty.

As explained in greater detail in an earlier post, Trinity Lutheran Church is suing the state of Missouri because the state refused to pay to resurface the church’s playground – a playground that the church uses for its explicitly religious daycare.

Missouri does operate a grant program for such resurfacing projects, but the Missouri Constitution, like the constitutions of about 37 other states, prohibits giving public money to churches or otherwise using taxpayer dollars for religious purposes. Although these no-aid clauses have been protecting religious liberty for the past 150 years, Trinity Lutheran and its Religious Right lawyers want to change all that by having the Supreme Court restrict the protections that these clauses afford.

Their goal is to undermine – if not overturn – a 2004 Supreme Court opinion by then-Chief Justice William H. Rehnquist called Locke v. Davey. Locke is a pillar of religious liberty jurisprudence because it upheld the state of Washington’s “no-aid” clause, which is quite similar to Missouri’s.

In Locke, a college student pursuing a ministry degree at a church-affiliated school wanted to use a publicly funded scholarship to pay for his education. He was stopped by Washington’s no-aid clause, which forbids using taxpayer dollars to pay for religious instruction.

The student filed suit, arguing that the state’s refusal to pay for his ministry degree violated, among other things, the Free Exercise and Equal Protection Clauses of the U.S. Constitution. In other words, he claimed that Washington was unlawfully discriminating on the basis of religion and in the process was restricting the exercise of his religious beliefs – the same arguments that the Religious Right is now marshaling against Missouri’s no-aid clause.

The Supreme Court, however, disagreed. Washington very well could have paid for the degree if it had wanted to, at least under the U.S. Constitution’s Establishment Clause (that portion of the First Amendment that says there can be no law “respecting an establishment of religion”) – an earlier case had already established that – but Washington could also choose not to risk the religious-liberty harms that can result from using public money for religious purposes.

Locke, therefore, represents the “play in the joints” between the First Amendment’s religion clauses. That is, some governmental actions are not forbidden by the Establishment Clause yet are also not required by the Free Exercise Clause; there is some breathing room between the two clauses.

And when you think about it, it makes sense this way.

What if an act that isn’t forbidden by the Establishment Clause is constitutionally mandated by the Free Exercise Clause? Receiving a public grant is a good example to use here. Under the Establishment Clause, secular activities performed by or occurring at religious organizations can receive government funding provided there are safeguards in place to ensure that the public money never serves evangelistic or other religious purposes.

A Supreme Court case could result in a lot of tax money raining down on houses of worship.

Without breathing room between the clauses, every time a religious organization could receive public money under the Establishment Clause, and then didn’t because the state suspected that the money would be put to improper purposes, the state would be denying a public benefit on the basis of religion and would thereby be violating the Free Exercise Clause.

The result would be that the state would have to perfectly predict whether a religious organization could or could not receive a public grant for a particular purpose. If the state were wrong in either direction – either giving public money that gets used for a religious purpose or failing to give public money when it would have been used for a nonreligious purpose – expensive litigation would follow, which in many cases could not be resolved until a court had ruled on the Religion Clauses’ application in that particular scenario.

And lest you wonder whether it could really be that difficult to determine whether a public-funding program is constitutionally appropriate or not, imagine the questions public officials would need to answer in order to make that determination. If religious organizations can receive tax funding as long as it is not used for a religious purpose, then public officials will have to know what a religious purpose looks like for every religious group seeking funding. Answering that question involves a nuanced, sympathetic, and potentially complex understanding of a religion’s theology.

Do we want public officials to wrestle with religious questions as part of their job – with the receipt of public funding hanging on their answers?

Then there is the complication of multi-use goods or facilities. What happens when a church ministry seeks a public grant to repair a facility used for secular purposes, say feeding the homeless, but also hosts religious services in the space?

And even if public officials manage to make the right call at the outset of a funding program, there is still the problem of continuing oversight. The Supreme Court has repeatedly held that the state must take steps to ensure that religious organizations receiving public aid do not misuse that aid. Yet continuing and invasive governmental oversight of religious institutions is not only conceptually troubling, it can itself be a source of constitutionally forbidden governmental entanglement with religion.

The scope and complexity of these problems, in addition to the serious religious liberty concerns raised by publicly funding religious institutions, make it clear why most states have made the same decision that Missouri did when it passed and later re-ratified its no-aid clause. These states were not and are not discriminating against religion, despite the Religious Right’s claims to the contrary. They made a categorical ban on all public funding for religious purposes because – ultimately – that choice is best for the safety, well-being and independence of religious institutions and religious believers.

Trinity Lutheran and its attorneys are trying to undermine, if not outright destroy, these protections. And that’s why Americans United and other religious and civil rights organizations joined forces yesterday and told the Supreme Court they must not be allowed to do so.