Did the court just seriously hamper the separation of church and state?

Supreme Court Breakfast Table

The Court Just Hampered the Separation of Church and State. Or Not, It’s Hard to Tell.

Supreme Court Breakfast Table

The Court Just Hampered the Separation of Church and State. Or Not, It’s Hard to Tell.
An email conversation about the news of the day.
June 26 2017 3:15 PM

Supreme Court Breakfast Table

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Entry 12: Did the court just seriously wound the separation of church and state?

US Supreme Court Associate Justice Sonia Sotomayor
Supreme Court Associate Justice Sonia Sotomayor in Washington on June 1.

Saul Loeb/AFP/Getty Images

Well it was a rockin’ sockin’ morning on Monday, and the big news is of course that rumors of Justice Anthony Kennedy’s immediate departure were overheated and premature (as Walter predicted). Maybe the takeaway from all of this is that no one individual should be this crucial in a modern constitutional democracy. We can at least now spend the summer trying to parse what the court’s ruling on the temporary injunction means for the president’s travel ban, and not the future of marriage equality, reproductive freedom, affirmative action, and political gerrymanders. I can’t immediately see how the new limited travel ban is going to be interpreted, or which individuals from the six affected countries and refugees from around the world will now be deemed as having “a credible claim of a bona fide relationship with a person or entity in the United States.” Thoughts? Thoughts also, on the Marty Lederman–vintage mootness questions that Walter has been raising all week? It’s worth emphasizing that this reads like an order about the correctness of an injunction and shouldn’t tell us much about what a decision on the merits will look like when the court hears the case in October.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

There is also much else to discuss, including the court’s refusal to take up yet another major Second Amendment case—with Clarence Thomas and Neil Gorsuch dissenting. The court decided, on the papers alone, a big Arkansas case based on the state’s refusal to list married same-sex couples on their children’s birth certificate. Citing the court’s marriage equality decision in Obergefell, the court found that the Constitution grants same sex couples “the constellation” of “rights, benefits, and responsibilities” that “the states have linked to marriage.” This would include having both parents get their names on official birth documents. Justice Gorsuch, joined by Justices Thomas and Samuel Alito dissented.

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The court also announced that it will (finally) hear a major case involving state anti-discrimination statutes and religious objectors: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the appeal of a Colorado baker who refused to create a wedding cake for the reception of a same sex couple. One can probably imagine what Justices Gorsuch, Alito, and Clarence Thomas will have to say about that. One brief preview of how the court might plan to look at such religion cases comes with the lone blockbuster of a generally sleepy term. In a 7–2 (or something like that—there’s a footnote …) decision in Trinity Lutheran Church of Columbia v. Comer, the court ruled that states are not permitted to prevent religious institutions from participating in state programs that are secular. In this litigation that meant Missouri couldn’t deny on the basis of religion the Trinity Lutheran Church’s application to take part in a program that used recycled rubber tires to make school playgrounds safer for children.

The church here operated a school and wanted access to a state program that gave grants to modify playgrounds to make them safer. The church’s own playground used coarse pea gravel and they sought to replace it with recycled rubber through Missouri’s Scrap Tire Program. Although the school ranked high as an applicant, they were rejected from participation because the Missouri state Constitution prohibits state funds from being directed toward “any church, sect, or denomination of religion.” About three dozen other states have similar prohibitions—rooted in a fear on entangling states in fights that would lead them to favor one religious group over another.

In a majority opinion authored by Chief Justice John Roberts, the court affirmed that denying a “generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’ ” He finds that the Missouri program “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

His opinion concludes:

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. 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.”
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Justice Elena Kagan joined this majority opinion, but the chief justice added a footnote that did not garner 5 votes. That footnote reads: “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.”

So it’s just about playground rubber. Or it’s not.

Confusingly, Justice Stephen Breyer writes a separate concurrence in which he says he would limit the case to government programs “designed to secure or to improve the health and safety of children.” He would go no further. That and the footnote all looks to me like a 7–2 opinion that may be quite limited but also opens many doors. Justices Gorsuch and Alito would clearly go much further.

Justice Ruth Bader Ginsburg joins Justice Sonia Sotomayor in a blistering dissent suggesting that this is not just a case about rubber. Sotomayor read her dissent from the bench. Here is the key portion:

“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its 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.”

Sotomayor thinks that the line between secular materials and religious materials is illusory: “The Church has a religious mission, one that it pursues through the Learning Center. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” Sotomayor concludes the lengthy opinion with the warning that what the court has done here is of tremendous import: If the “separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

The fact that nobody in the majority sees fit to address the concerns laid out in the dissent suggests to me that nobody in the majority thinks much of anything changed Monday. That strikes me as implausible on its face. But in the cacophony of footnote 3 and the Breyer concurrence, perhaps I am mistaken?

Walter has been suggesting all week that Trinity Lutheran will be a big deal. I think this is a big fat deal that folks are calling a small deal with a footnote that doesn’t have the agreement of five justices reading “hey, it’s a small deal.”