Symposium: Gay rights, religious liberty and … tire scraps? The inclusive Fourteenth Amendment path in Trinity Lutheran

Mark L. Rienzi is an associate professor at The Catholic University of America, Columbus School of Law.

It is tempting to think of Trinity Lutheran Church v. Pauley as a welcome respite from the recent spate of hot-button religious liberty cases that prompt concerns from the gay rights community (Burwell v. Hobby Lobby and Zubik v. Burwell) and hot-button gay rights cases that prompt concerns from the religious liberty community (Obergefell v. Hodges). After all, this case is about a mundane topic that would seem to have nothing at all to do with either sex or religion: resurfacing children’s playgrounds with recycled tire scraps.

But it turns out this case is even better than a mere respite; it is an opportunity. Precisely because the case concerns an otherwise uncontroversial topic, it offers a chance for cooler heads on all sides to observe something important about gay rights and religious liberty: they need not be in conflict. In fact, the closest precedent for the kind of discrimination against religious groups at issue in this case is not a First Amendment religious liberty case, but rather a Fourteenth Amendment gay rights case, Romer v. Evans.

By resolving this case on equal protection grounds under Romer, the Justices can make clear that there is no inherent conflict between gay rights and religious liberty. To the contrary, the same broad conception of individual liberty at work in the Court’s gay rights cases can, if fairly applied to all people, provide important protections for religious liberty as well.

Romer’s important limit on state constitutions

In Romer, the Court held that an amendment to the Colorado state constitution (“Amendment 2”) that prohibited gays, lesbians, and bisexuals from obtaining status as a protected class violated the Equal Protection Clause. In reaching this conclusion, the Court found that Amendment 2 “identifies persons by a single trait and then denies them protection across the board.” The Court further found that Colorado’s action was inconsistent with a central principle of the “Constitution’s guarantee of equal protection” – i.e., “that government and each of its parts” (emphasis added) should remain open to all. The Court held that the Colorado amendment singles out gays, lesbians, and bisexuals as a class for special treatment by limiting that class, and that class only, to redressing political grievances at the state constitutional level.

Crucial to the decision in Romer was the Court’s view of the political process. The Court did not say that every state and locality must treat sexual orientation as a protected class. Instead, it faulted the Colorado constitution for making it harder for gays, lesbians, and bisexuals to obtain such protection because they needed to amend the state constitution before they could do so. While everyone else in the state remained free to seek protection from their state and local legislatures, the targeted class could not seek protection on equal terms. Rather, they were “forbidden the safeguards that others enjoy or may seek without constraint” because they needed to amend the state’s constitution to obtain similar protection.

The Court summed up the political process problem like this: “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

State Blaine Amendments violate Romer

The type of state constitutional provision at issue in this case – often known as a “Blaine Amendment” and found in many state constitutions – violates the Fourteenth Amendment for the same reasons that controlled in Romer.

By way of background, in the mid-1800s, as Catholic immigration increased and threatened Protestant domination of society, a wave of anti-Catholic hostility arose in many parts of the United States. At the federal level, this hostility resulted in the near passage of an amendment to the United States Constitution prohibiting any state funding of “sectarian” schools. The “Blaine Amendment” (named for its proponent, Speaker of the House James Blaine) narrowly failed at the federal level. But a host of states adopted state “Blaine Amendments” to limit Catholic participation in the schools and other parts of government.

As seven members of the Supreme Court have observed over the years, these Blaine Amendments were not designed to exclude religion from public schools or from government more broadly. To the contrary, they were designed to exclude Catholic religious influence in the schools, while protecting and preserving ongoing Protestant religious activities (like reading the Bible and prayer) in the schools. Justices Stephen Breyer, John Paul Stevens, and David Souter recounted this history in their dissenting opinion in Zelman v. Simmons-Harris. And in the plurality opinion in Mitchell v. Helms, Chief Justice William Rehnquist and Justices Clarence Thomas, Anthony Kennedy, and Antonin Scalia likewise observed that Blaine Amendments arose from anti-Catholic animus and represent a “doctrine, born of bigotry, [that] should be buried now.”

The Missouri state constitutional provision at issue in this case is, like many state Blaine Amendments, designed to exclude religious institutions from equal participation in government programs. In this respect, it runs afoul of Romer. Indeed, Article I, § 7 of the Missouri Constitution is indistinguishable in all relevant respects from the amendment that the Court found unconstitutional in Romer. As in Romer, Missouri’s provision singles out people and organizations by a single trait (here, religiosity instead of sexual orientation). As in Romer, the singled-out group is then given lesser rights than the rest of society (here, foreclosed from equal participation in otherwise generally available government programs). And as in Romer, the targeted group is restricted to seeking redress of its political grievances solely through the state constitutional process, while all other state citizens may effectuate change in public policy through laws, regulations, or administrative discretion.

Romer declares, in broad and inclusive terms, that this type of targeting is impermissible: “Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that the government and each of its parts must remain open on impartial terms to all who seek its assistance.” There is no reason to believe that a state’s singling out of people and organizations based on their religiosity rather than their sexual orientation creates any less of a Fourteenth Amendment problem. If anything, the case for applying this principle to state Blaine Amendments is arguably even stronger than applying it to sexual orientation claims as in Romer. After all, while there is an ongoing dispute about whether sexual orientation is a protected class under the Fourteenth Amendment, there is no doubt that religion is. And while the Court in Romer needed to infer animus from the circumstances, that anti-religious animus that motivated Blaine Amendments is a matter of well-developed historical record.

Fourteenth Amendment protection for gay rights and religion

Romer’s applicability to a religious liberty case should not be surprising. The view of liberty at the heart of the Court’s gay rights cases – Romer, Lawrence v. Texas, Obergefell – seems as much calibrated to protecting religious identity as sexual identity. Those cases teach that the Fourteenth Amendment protects the right to live out and define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” People are every bit as likely to live out their views on those issues in their religious lives as in their sex lives. Indeed, it would be an odd conception of liberty to say that we each have a protected liberty right to determine and live out our own view of these big questions only when our exercise of that right involves sex. Religious identity, like sexual identity, is “central to personal dignity and autonomy” for many people. Religious belief and practice, like sex, can be very important to a person’s self-definition. There is no reason to read the Fourteenth Amendment as protecting dignity, autonomy, self-definition and other values only when they relate to sex and not when they relate to religion.

The Court does not need to draw this parallel in any detail to rule for the church in this case. It would be enough to simply observe that Romer prohibits state constitutions from singling out particular groups and denying them equal participation in government programs unless and until they have the political power to change the state’s constitution. Using Romer in a religious liberty case would also demonstrate that the Justices who embraced the broad view of liberty in gay rights and abortion cases believe in that view of liberty for everyone, and not merely as a means to achieve a preferred political outcome. And perhaps most importantly, it would tell people on all sides of the perceived conflict between religious liberty and gay rights that their interests need not conflict at all, and may be more similar than most people realize.