Symposium: The crumbling wall separating church and state

Erwin Chemerinsky is Dean and Raymond Pryke Professor of First Amendment Law at University of California, Irvine School of Law.

As Justice Sonia Sotomayor powerfully observed in her dissent, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer is unprecedented in American history: Never before had the Supreme Court held that the government is required to provide assistance to religious institutions. Despite a footnote that attempts to limit the scope of this holding, the decision is going to engender a great deal of litigation as religious institutions now will claim a constitutional right to a wide array of benefits provided by the government to non-religious institutions. The noble and essential idea of a wall separating church and state is left in disarray, if not shambles.

That notion was not invented by 21st-century liberal law professors. Rather, of course, it came from Thomas Jefferson in a January 1, 1802, letter addressed to the Danbury Baptist Association and published in a Massachusetts newspaper, where Jefferson said: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” The phase actually can be traced back to Roger Williams, the founder of the first Baptist church in America, who wrote in 1644 of the need for “a hedge or wall of separation between the garden of the church and the wilderness of the world.”

In 1947, when the Supreme Court in Everson v. Board of Education held that the establishment clause applies to state and local governments, all nine justices accepted this metaphor of a wall separating church and state as reflecting the commitment of the First Amendment. They also very much accepted the reasoning of James Madison, who said that it was unconscionable to tax some to support the religions of others.

The First Amendment thus long has been understood to mean that, at times, the government must treat religion differently from non-religious activities. For over a half century, the court has held that certain speech, such as prayer, is forbidden in public schools, notwithstanding the constitutional protection for expression. For at least that long, the court has held that some forms of government aid to religious schools are constitutionally prohibited. This is not about hostility to religion. As Sotomayor rightly said in her dissent in Trinity Lutheran, “[a] State’s decision not to fund houses of worship does not disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns.”

Most Supreme Court cases about aid to parochial schools have focused on whether the government violates the establishment clause when it chooses to provide a particular type of assistance. Only once before had the court considered the possibility that the Constitution compels government aid to religious institutions, and there the court emphatically rejected such a requirement. In Locke v. Davey, the court in 2004 considered a Washington state program that provided college scholarships to students from that state. Joshua Davey wanted to use his Promise scholarship to attend a seminary to be ordained as a minister, but the state refused to allow this. Davey, like Trinity Lutheran, sued, claiming that the state’s refusal violated his right to free exercise of religion and denied him equal protection. The court, in a 7-2 decision, in an opinion by Chief Justice William Rehnquist, rejected Davey’s claim and held that it did not violate the Constitution for the government to insist that its funds be used at secular institutions. Rehnquist spoke powerfully of a state’s interest in not having its funds used for religious purposes.

But in Trinity Lutheran, the court’s majority held that the denial of aid to parochial schools – in this instance, material for the surface of playgrounds – violated the church’s free-exercise rights. Chief Justice John Roberts’ majority opinion explicitly said that Missouri’s choice to deny this aid to religious schools had to meet strict scrutiny under the free exercise clause. The court found that Missouri’s justifications for the denial did not survive strict scrutiny, and Roberts concluded his opinion with the powerful statement: “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

The court distinguished Locke v. Davey on two grounds. First, the court said: “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.” Second, the court said that Locke v. Davey involved aid for training a minister, whereas this case concerns assistance for playgrounds.

Both of these distinctions are very troubling. As to the former, any time the government denies aid to parochial schools it is because of what they are: religious institutions. This would seem to make any denial of aid to religious schools unconstitutional when assistance is provided to public schools. Or for that matter, it would make it unconstitutional to deny religious institutions any aid that is provided to secular institutions. For years, the government has refused to provide faith-based institutions the assistance offered to secular institutions, whether for preschools or drug rehabilitation programs or other social services. Religious institutions could receive the aid, but they needed to create a secular arm to do so. The charitable-choice movement has sought to allow faith-based institutions – churches, synagogues, mosques – to receive government assistance directly. The language in Roberts’ opinion suggests that charitable choice may be a constitutional requirement. After all, the denial of aid always is because of what the institutions are: churches, synagogues, mosques.

Also, the distinction between what an institution is and what it does is inherently arbitrary. Religious institutions are different precisely because of what they do. Conversely, Joshua Davey was denied use of his scholarship because of what he was: A Christian who wanted to be ordained as a minister.

The court’s other distinction based on how the aid is used is equally troubling. As the court often has observed, dollars are fungible. Aid provided for playgrounds frees up money for the parochial school to use for other purposes, including religious indoctrination. In 2002, in Zelman v. Simmons-Harris, the court said that it was constitutionally permissible for the government to allow vouchers to be used in parochial schools. The court’s decision in Trinity Lutheran suggests that the government not only can, but must allow vouchers to be used in parochial schools when they can be used in secular schools.

Also, with this distinction, the court invites endless line-drawing as to which types of aid are like Trinity Lutheran and which are like Locke v. Davey. Roberts’ only attempt to address this or to limit the reach of the court’s holding is found in footnote 3, where he writes: “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.” Only three other justices (Anthony Kennedy, Samuel Alito and Elena Kagan) joined this footnote. Justices Clarence Thomas and Neil Gorsuch wrote separately to say that they did not, and that they wanted to overrule Locke v. Davey.

The court’s decision is thus going to lead to a great deal of litigation. Any time the government provides any aid to secular private institutions, religious ones will now sue and say that the denial violates their free-exercise rights. That is the consequence of the court’s saying that the government must meet strict scrutiny in order to justify the denial of assistance to a religious institution.

Obviously, it is unclear where this line will be drawn. At the very least, the government must be able to deny aid when providing it would violate the establishment clause. For example, in 2000, in Mitchell v. Helms, a majority of the justices agreed that the government could not provide assistance that is actually used for religious instruction even if it is a type of aid provided to secular schools. But this limit is uncertain, especially because the court’s conservative majority has a very narrow view of what violates the establishment clause.

The actual holding of the case, that the state of Missouri has to provide aid to religious schools for the resurfacing of playgrounds, is fairly inconsequential. In fact, Missouri already had changed its policy to do this. It is the larger principle that is so important. Soon before she left the court, Justice Sandra Day O’Connor spoke eloquently of the need for the separation of church and state when she wrote: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?” Why indeed? But that is exactly what the court did in Trinity Lutheran in taking a significant step towards dismantling the wall that separates church and state.