Symposium: Confronting a nativist past; protecting school-choice’s future

Richard W. Garnett is Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame.

Trinity Lutheran Child Learning Center is, its website reports, a “ministry of Trinity Lutheran Church” that “provides opportunities for children to grow spiritually, physically, socially, and cognitively.” As one would expect at a pre-kindergarten, one place this growth happens is on the swings and slides that are spread around the Learning Center’s colorful and inviting playground.

The Learning Center is – again, as one would expect – committed and attentive to its students’ safety. So, a few years ago, the school’s staff decided that rubber surfaces made from recycled scrap tires were better for kids’ knees and elbows than pebbles, mulch, rocks, or pavement. As it happens, Missouri’s Department of Natural Resources has a program that distributes Playground Scrap Tire Surface Material Grants – that is, money – to qualifying entities so they can buy recycled tires for precisely this purpose. Recycling, solid-waste disposal, kids’ safety and growth . . . everybody wins.

But Trinity Church’s application was denied, and for one reason only: It is a church. In other respects, the Learning Center is a qualifying institution and its application was strong (ranked fifth out of the forty-four that were submitted). Nevertheless, the director of the scrap-tire-grants program informed the school that the department was “unable to provide this financial assistance directly to the church” because the funding would violate a provision of the Missouri Constitution that states “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

The Church challenged this denial as a violation of the Constitution of the United States, but the federal trial court, and then the U.S. Court of Appeals for the Eighth Circuit, sided with the Department. In the latter court’s view, the First and Fourteenth Amendments to the Constitution permit Missouri to discriminate in this way, in keeping with what the court called the state’s “long history of maintain a very high wall between church and state.” Last January, the Supreme Court agreed to take the case and answer the question “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Less than one month later, Justice Antonin Scalia died. As a result, some of the last year’s most closely watched, high-profile cases turned out differently than, probably, they would have had he lived. Given that Justice Scalia’s dissenting opinion in the Court’s last major aid-to-religion case, Locke v. Davey, provides strong and clear support for Trinity Church’s argument that Missouri’s discriminatory policy is unconstitutional, many wonder whether, once again, his absence will – as his presence and votes so often did in the religious-freedom context – drive the result in Trinity Lutheran.

The Eighth Circuit panel appeared to regard Trinity Church’s claim as having been already decided, and rejected, by the Supreme Court. As the panel noted, the Court had summarily affirmed, in Luetkemeyer v. Kaufmann, a federal district court’s ruling that the “no aid” provision in Missouri’s constitution did not violate the Equal Protection Clause and served a “compelling state interest” in “maintaining a very high wall between church and state.’” (Two Justices dissented.)  And, in Locke v. Davey, Chief Justice William Rehnquist wrote for a seven-Justice majority that the state of Washington could, in keeping with its own no-aid provision, deny scholarship funds to an otherwise eligible student who chose to pursue a degree in “devotional theology.”

The Supreme Court may and should read Locke more narrowly, as some other lower courts have done. That case was about the specific and special issue of public funding for the training of clergy and shouldn’t determine the outcome in a case about recycled scrap tires being used to upgrade a pre-school playground. The decision’s recognition that there is some “play in the joints” between what the Constitution requires and what it permits can and should be regarded not as providing a blank check to states seeking to discriminate, in the name of extra-strict “separation,” against religious beneficiaries and activities. The Justices should take account of the fact that Luetkemeyer reflected a way of thinking about aid to religious schools that they have, for good reasons, abandoned. In recent decades, the doctrine and precedents having to do with this matter have emphasized neutrality, not strict separation, and have asked whether a program is even-handed, not whether it might, somehow, “advance” religion.

In this way, the law has reconnected with a foundational point that was the basis for its first decision in the area, Everson v. Board of Education, in which Justice Hugo Black (who was certainly not a proponent of aid to parochial schools) insisted that public officials may not exclude citizens “of any . . . faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” Similarly, in the Court’s landmark (and still controversial) decision in Employment Division v. Smith, the Justices noted that the First Amendment forbids governments from “impos[ing] special disabilities on the basis of religious views or religious status.” A dozen years earlier, in his concurring opinion in McDaniel v. Paty, Justice William Brennan had forcefully made the same point: Generally speaking, “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.”

But again: Justice Scalia is no longer on the Court. Even if Justice Anthony Kennedy, who voted with the majority in Locke but whose record in nearly thirty years’ worth of aid-to-religion cases is consistent with Trinity Church’s nondiscrimination argument, sides with the school, joining the three remaining Republican appointees, we could see not a helpful clarification but instead a confusion-prolonging tie.

Church-state aficionados should, in addition to speculating about vote-counts or compromises aimed at avoiding yet another “affirmed by an equally divided Court,” be listening and watching for hints regarding, or answers to, at least three questions.

First, will the Justices acknowledge, and perhaps even engage, the actual history and purpose of no-aid provisions like the one invoked by Missouri in this case? The Eighth Circuit did not mention the term “Blaine Amendments” and instead gestured vaguely to, again, a “long history of maintaining a very high wall between church and state” and to Missouri’s embrace of a “more restrictive” version of separation. In fact, though – as Philip Hamburger, John McGreevy, Joseph Viteritti, Lloyd Jorgenson, and many others have shown – provisions like Missouri’s were adopted by states (and sometimes required by the federal government) not to implement an abstraction like “separation” but rather to marginalize and undermine Roman Catholicism in America. These provisions’ origins, regardless of how the laws are justified or described today, are not easily disentangled from nineteenth-century America’s pervasive anti-Catholicism and nativism or from a broader ideological, nationalist project of using state-mandated public schooling to inculcate “American” values and loyalties. Justice Thomas discussed this history in his 2000 opinion in Mitchell v. Helms and Chief Justice Rehnquist mentioned it in a footnote in Locke. Will the Justices, in Trinity Lutheran, deal with the elephant in the room?

Second, will the Democratic appointees – and especially Justices Stephen Breyer and Ruth Bader Ginsburg, who dissented in Zelman v. Simmons-Harris, the Court’s landmark, five-to-four school-voucher ruling – agree with the Eighth Circuit panel that “Establishment Clause jurisprudence has evolved rather dramatically” and that “it now seems rather clear that Missouri could include the Learning Center’s playground in a non-discriminatory Scrap Tire grant program without violating the Establishment Clause”? In other words, will an eight-member Court, which is for now split fairly evenly on many hot-button topics but which will almost certainly change significantly, and move to the left, in the next few years, signal to judges, legislators, and activists that Zelman is and will remain settled law? Or, will there be hints from the Democratic appointees that Zelman – like, many liberal academics and observers hope, Heller v. District of Columbia, Citizens United v. Federal Election Commission, Parents Involved in Community Schools v. Seattle School District No. 1, etc. – could be revisited, revised, or narrowed, that choice-based reforms are again suspect, and that the school-voucher question is again up for grabs?

Third, and related: Will any of the Justices examine or embrace the claim, advanced in the amicus brief filed by the Lambda Legal Defense and Education Fund that the Constitution should be read to disallow government from cooperating, even through neutral programs, with religious organizations that “discriminate on the basis of religion and other grounds”? I have argued in academic writing that it is a mistaken oversimplification to equate invidious and irrational “discrimination” by governments with religious organizations’ efforts to operate in keeping with their religious teachings, character, and mission. The government, of course, may and should not discriminate on the basis of religion. However, there is not (or, at least, there should not be) anything objectionable about a religious school or social-welfare agency hiring for mission. Nor does the latter become objectionable, let alone unconstitutional, simply because the religious actor is cooperating with the government to do good works like feeding the hungry, caring for the sick, or educating the young. Unfortunately, some seem determined to wage an aggressive culture-war campaign that conflates religious commitments with “bigotry.” Will the Court resist, or enlist in, this effort?

“Separation of church and state” is an important idea. Correctly understood and reasonably implemented, it is a limit on government that protects religious freedom by preventing the government from corrupting religion or interfering in religious groups’ affairs. It does not require, though, and the Constitution’s neutrality principle should not permit, the pointless discrimination at issue in Trinity Lutheran Church.