By DEACON MIKE MANNO
(Editor’s Note: Deacon Mike Manno, an attorney, is director of deacons for the Diocese of Des Moines and host of Iowa Catholic Radio’s Faith On Trial program [www.iowacatholicradio.com]. He can be reached at deaconmike@iowacatholicradio.com.)
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We don’t normally think of scrap tires as having much to do with religious liberty, but this month they do and will provide a good test of newly confirmed Supreme Court Associate Justice Neil Gorsuch’s First Amendment jurisprudence.
New to the court, and immediately after a controversial confirmation process, one of the first cases in which Justice Gorsuch will take part pits a failed nineteenth-century constitutional amendment, the State of Missouri, a church-sponsored day care, and religious freedom over access to, of all things, scrap tires.
A little background: The Missouri Department of Natural Resources operates a grant program that assists qualifying entities to obtain scrap tire material to surface playgrounds. Trinity Lutheran Church of Columbia applied for the grant to resurface a playground adjacent to its licensed preschool and daycare, called The Learning Center. The Learning Center has an open admissions policy but does incorporate daily religious instructions into its program.
Trinity applied for one of the grants, which are awarded on a competitive basis; its application was ranked fifth out of 44 applications. Fourteen applications were approved. But, to Trinity’s chagrin, its application was denied. The reason: Missouri had adopted a state version of a proposed constitutional amendment that failed in 1875.
The failed amendment was known as the Blaine Amendment, named after its sponsor Cong. James G. Blaine, and sought to prohibit public funding of religious (read that: Catholic) schools: “no money…from any public fund…shall ever be under the control of any religious sect.” The amendment was viewed as anti-Catholic and Blaine’s support of it was one of the factors that cost him the presidential election of 1884 (“rum, Romanism, and rebellion” didn’t help much, either).
However, while the Blaine Amendment failed to muster enough votes in Congress to send it to the states, local politicians managed to pass Little Blaine Amendments into their state’s constitutions. To date 38 states have some form of the amendment in their constitutions which forbid direct government aid to educational institutions that have a religious affiliation. Missouri is one of those states and in 2012 denied Trinity’s application because of it.
Trinity filed suit in Federal District court alleging that the state’s Blaine Amendment violated the U.S. Constitution in four particulars: violation of the Equal Protection clause of the Nineteenth Amendment; violation of the First Amendment’s Free Exercise Clause as well as the Establishment Clause, and free speech.
The district court dismissed the case and Trinity appealed to the Eighth Circuit Court of Appeals which ruled against Trinity in a decision filed May 29, 2015. Trinity appealed to the Supreme Court which accepted the case (Trinity Lutheran Church of Columbia, Inc. v. Comer) and set oral argument for April 19, which makes it one of the first cases Neil Gorsuch will hear as a Supreme Court justice.
This case is obviously one that proponents of religious freedom are watching closely to see if Justice Gorsuch will live up to his reputation as a friend of religious freedom and how far the Supreme Court might go to neutralize the effects of the Little Blaine Amendments nationwide.
The two religion clauses in the First Amendment are simply stated but cause a lot of misunderstanding even among legal experts: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Equal Protection Clause of the Fourteenth Amendment says, “. . . nor shall any state . . . deny to any person within its jurisdiction the equal protection of the law.”
You don’t need to think very hard to see the built-in tensions among these constitutional provisions. If a graduation prayer or a Nativity set in a park violates the Establishment Clause, why wouldn’t the same rationale apply to Trinity? But while Trinity has a right to freely exercise its faith, if it was not a church school it could participate, so how is that equal protection?
To resolve some of the tensions produced by these clauses, the Supreme Court has developed what is called “play in the joints” principle, seeking a permissible accommodation between the differing religious freedom clauses. Thus some state actions may be permitted under the Establishment Clause but not required by the Free Exercise Clause. Or, to put it another way, while the state could allow Trinity to participate in the scrap tire program without violating the Establishment Clause, the Free Exercise Clause does not mandate that it do so.
Thus the state can have a more restrictive version of the Establishment Clause than the federal government does.
This concept was articulated more recently by the Supreme Court in Locke v. Davey in 2004. That case involved a divinity student in Washington State who had a state scholarship revoked when he enrolled in a program leading to a degree in devotional theology, which was a degree program that was ineligible for the scholarship under the terms of that state’s constitution.
When his scholarship was revoked the student, Joshua Davy, sued in federal court claiming, among other things, that the denial was a violation of both the Establishment and Free Exercise clauses. As in the Trinity case the district court dismissed, but unlike Trinity the dismissal was reversed by — of all places — the Ninth Circuit Court of Appeals which found that by singling out religion by excluding theology degrees without a compelling state interest, the state provisions were unconstitutional.
The Supreme Court reversed (7-2 with Justices Scalia and Thomas dissenting), holding that the state could, if it wished, allow scholarships for theology students, but that it was also free to draw a brighter line between church and state than the federal Constitution did. Thus the state could choose to refuse even indirect funding of religion by denying aid to those studying for a career in religious ministry:
“Even though the differently worded Washington constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion.”
The late Justice Antonin Scalia, whom Justice Gorsuch is replacing, argued that the Washington case should have been governed by the 1947 landmark case Everson v. Board of Education wherein the Supreme Court held that a New Jersey law allowing the state to reimburse parents of both public and private students for transportation costs was constitutional.
He argued, “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”
So the question ultimately presented to Justice Gorsuch and his colleagues on the High Court is this: Do the constitutional guarantees of Free Exercise and Equal Protection require states to provide benefits to religious institutions when that aid has nothing to do with promoting religious beliefs or practices?
The case is being watched by religious leaders and legal scholars not only for how that question is answered, but for how the court addresses the Little Blaine Amendments generally. The irony, of course, is that what was enacted as anti-Catholic laws could be overturned because of a Lutheran day care. But even if the court sides with Trinity don’t expect a sweeping opinion; the court likes to focus on narrow issues and usually doesn’t promulgate rulings that are broader than the facts of the case require.
Stay tuned. A decision should come this spring which could send the court’s religious liberty jurisprudence in a new direction — or not.
After this story was written, Missouri Gov. Eric Greitens issued a press release stating that the Department of Natural Resources had changed its policy to permit grants to be given to religious groups, not only for recycled playground surfaces, but also for school field trips to state parks and programs to promote recycling and erosion control.
Whether this moots the case will be decided by the Supreme Court, which has asked each party for additional briefing addressing how the governor’s decision affects the case. Deadline for the additional briefing was scheduled for April 18, the day before the court was scheduled to hear oral arguments in the case. We’ll have to wait to see how the scrap tire bounces in light of this new development.
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