Symposium: Putting some limits on the “play in the joints”

Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law. She filed an amicus brief for the General Council of the Assemblies of God in support of the church in Trinity Lutheran v. Comer.

Although somewhat controversial, today’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer was far from unexpected. The case languished on the docket for over a year – under the common assumption that the justices were split 4-4 and were therefore awaiting a new member of the court. But oral argument revealed a Supreme Court that was surprisingly hostile to the idea that a state can refuse to allow a church to participate in a public program simply because it is a church.

Today, the Supreme Court resolved any remaining doubt about its views on that question, holding firmly that a state may not deny an otherwise publicly available benefit to a church or religious nonprofit because of its faith.

The facts were clearly on the side of the church. In an effort to prevent schoolyard injuries, Trinity Lutheran applied for a grant to purchase recycled tire scraps for its playground. Despite Trinity Lutheran’s strong application, Missouri’s Department of Natural Resources denied the grant for one reason only: Trinity Lutheran was a church. In the director’s view, to award public funding would violate Missouri’s Blaine Amendment, which provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

By a 7-2 margin, the Supreme Court found that such an application of Missouri’s Blaine Amendment was unconstitutional. The court was clear that the free exercise clause “protect[s] religious observers against unequal treatment.” Thus, any effort to deny a generally available benefit on religious grounds is subject to strict scrutiny. The court went on to find that Missouri had no compelling interest in discriminating against religious organizations in its effort to make playgrounds safer. Missouri’s application of its Blaine Amendment violated the free exercise clause because it put Trinity Lutheran to the choice of remaining a church or participating in a generally available public program.

But truth be told, today’s case was easy. To discriminate against a church in its application for public benefits, simply because it is religious, runs headlong into the free exercise clause – which explains the lopsided nature of the decision. It is not hard to see that the Constitution protects the right of a religious nonprofit to apply to participate in a public program without disavowing its religious character.

The Supreme Court’s opinion leaves to another day the more difficult question about whether state Blaine Amendments may be used to discriminate against private religious schools in the award of grants and scholarships. This question is critical for giving states the flexibility to provide quality education to low-income students in Missouri and other states. Indeed, a whopping 35 states have Blaine Amendments – century-old laws that have been interpreted to prohibit state scholarship recipients from choosing parochial schools.

We know from the 2002 case Zelman v. Simmons-Harris, however, that the federal Constitution does not require such a high wall of separation. Since the 1940s, it has been the law that a state may reimburse parents for the costs of transportation to both public and parochial schools. And Zelman held that the establishment clause is not violated when states provide funding to religious schools. In that case, Ohio sought to improve educational quality in Cleveland (where more than two-thirds of public school students either dropped out or failed prior to graduation), by providing families with educational options. Parents could choose to send their children to public or private schools (including religious schools), and tuition scholarships would follow the children.

The Supreme Court had little trouble blessing the scholarship program at issue in Zelman under the First Amendment. The court first found that the program was enacted for the valid secular purpose of improving the educational opportunities of the state’s poorest students. Further, there was no establishment clause violation because the aid program was neutral with respect to religion and left to the parents the choice as to how to direct that aid. The neutral program did not suggest government endorsement. And because parents chose the schools, any incidental advancement of a religious message was attributable to that individual choice, not the government.

The battle over state assistance to parochial education then turned to the states. In 2004, the Supreme Court held in Locke v. Davey that Washington state could (but need not, per Zelman) refuse under its Blaine Amendment to fund religious instruction that would prepare students for ministry.

Locke v. Davey involved difficult questions regarding what the court called the “play in the joints” between the establishment clause – “Congress shall make no law respecting an establishment of religion,” and the free exercise clause – “or prohibiting the free exercise thereof.” In Locke, the court described this “play in the joints” as the idea that there are “some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” In that case, there was no question that under the establishment clause, Washington could have allowed scholarship recipients to pursue devotional theology degrees. Yet the “play in the joints,” in the court’s view, meant that the state could refuse to fund such degrees without violating the free exercise clause.

Trinity Lutheran fleshes out the relationship between the First Amendment’s dual prohibitions – the “play in the joints.” Importantly, the court had no patience for Missouri’s argument that an infringement of the free exercise clause could be sustained because of a compelling interest in prohibiting establishment clause concerns. The court suggested that such an interest was neither compelling nor sufficient: “[T]he state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.”

After Trinity Lutheran, then, discrimination against a religious nonprofit in the award of a public benefit cannot be justified on establishment grounds. And any argument that a burden on religion is justified by a state interest in establishing greater separation of church and state will similarly be suspect. The Supreme Court’s reasoning suggests that many applications of state Blaine Amendments are on shaky footing.

The court foresaw this possibility, and most likely to achieve greater consensus, sought to limit its opinion to playgrounds. In footnote 3, the court says: “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.”

But of course Supreme Court opinions are not like a “restricted railroad ticket, good for this day and train only.” Neither the reasoning in Trinity Lutheran nor the free exercise clause contains any inherent playground restriction.

Indeed, the court’s reasoning today extends far beyond playgrounds. It suggests that Locke v. Davey may stand simply for the proposition that the training of clergy is different. Trinity Lutheran acknowledged that Washington was permitted to deny scholarships to individuals who chose to pursue “religious endeavors” – endeavors akin to supporting church ministers. But the court’s opinion suggests that a state may not prevent private individuals from choosing a religious education under a generally available scholarship or tuition grant program.

Indeed, the program at issue in Locke allowed scholarship students to attend “pervasively religious schools.” The college at issue in that case, Northwest College, promoted its educational pedagogy as being “distinctly Christian.” Every student was taught to use the “the Bible as their guide, as the truth,” no matter their field of study. And every student was required to take at least four devotional courses, “Exploring the Bible,” “Principles of Spiritual Development,” “Evangelism in the Christian Life,” and “Christian Doctrine.”

In Trinity Lutheran today, we see where the play in the joints stops. A state must be neutral as to religion. And when it instead chooses to discriminate in the award of generally available public benefits, its interest in achieving a greater than necessary wall between church and state will be suspect. Going forward, Blaine Amendments are less likely to provide the compelling government interest necessary to burden religion.