Symposium: Bad news from Trinity Lutheran – Only two justices support the establishment clause

Leslie C. Griffin is William S. Boyd Professor of Law at the UNLV Boyd School of Law.

Seven of nine Supreme Court justices voted for Trinity Lutheran Church today, in Trinity Lutheran Church of Columbia v. Comer. The court ruled that Missouri’s decision to deny TLC state funding for its church playground violated the free exercise clause.

The seven justices oversimplified the case. Chief Justice John Roberts’ opinion for the court stated quite straightforwardly that to deny funding simply because an institution is a church violates free exercise and is “odious to our Constitution.” The state’s rule was simple, he wrote, “No churches need apply.” And that rule was unconstitutional.

Justices Clarence Thomas and Neil Gorsuch concurred separately. Gorsuch described the case simply as “discrimination against religious exercise.” Both men distanced themselves from Roberts’ footnote 3, which offered a possible although unlikely limit on the extent of the opinion. According to this note, “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.” Apparently the two justices were avoiding any limits on the future power of free exercise to help religion.

Justice Stephen Breyer also wrote a concurrence to the judgment. For some uncertain reason, he compared this case to an older case about police and fire protection. He concluded that property aid and police protection are the same, even when they are not.

Not a word from Justices Anthony Kennedy or Elena Kagan, who should have known better.

Justice Sonia Sotomayor’s dissent, joined only by Justice Ruth Bader Ginsburg, was much more complicated, detailed, historical and correct. She repeatedly used piercing language to identify the dangerous simplicities of the majority’s opinion. Even in her opening paragraph, she insisted that the decision “slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

Only the two dissenting justices recognized that establishment separation protects religious liberty by blocking the government from just funding any religion that desires money. Sotomayor is correct that the majority’s establishment-free reasoning is a “startling departure from our precedents.” Instead of the dissenters’ goal of an establishment-clause-based religious liberty, this court lets religions win without any establishment penalties. Ministerial exception (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission). RFRA (Sebelius v. Hobby Lobby Stores, Inc.). Government prayer (Town of Greece v. Galloway). Religion keeps winning, setting up precedents that allow individual members to lose.

Sotomayor and Ginsburg, bemoaning the “lopsided outcome,” urged their colleagues to remember why and how the establishment clause protects religious liberty. The government should not fund religion. Period. Unfortunately, not even Kagan understood that funding religion can pay for religious discrimination, violation of human rights and lack of equality. Sotomayor and Ginsburg’s footnote 14 worried about what the decision “might enable tomorrow.” We have to wonder if Thomas and Gorsuch will ever get the complete victory for religion that their hearts desire.

Seven justices gave a victory to TLC. The last pages of the dissent are full of concerns about how the court has undermined secular government; dismantled, not strengthened, religious freedom; and led “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

If a majority of the court ignores these lessons, who knows what the court might do next.