An Inconsistent Bench


By: Lesley Roe, Volume 102 Staff Member

In June of this year, the Supreme Court decided Trinity Lutheran Church v. Comer, a case with serious implications for the Court’s First Amendment jurisprudence.[1] Trinity Lutheran features a strong concurrence written by Justice Neil Gorsuch, indicative of the role the newest Justice sees himself filling on the nation’s highest bench.[2] Viewing this concurrence alongside the late Justice Scalia’s 2004 dissent in Locke v. Davey—also a Free Exercise challenge— illuminates the similarities between the two cases, the two Justices, and the two Courts.[3] The opposite outcomes of Trinity Lutheran and Locke underscore the Court’s recent swing to the right, and highlight its apparent willingness to rewrite precedent to reflect the current political moment.

This Post will briefly outline the facts and holding of Locke with particular reference to Scalia’s dissenting opinion. This Post will then discuss Trinity Lutheran, situating Justice Gorsuch’s concurrence within the Court’s overall holding. Finally, this Post will argue that the Court failed to meaningfully distinguish the two cases, irresponsibly trampling Constitutional precedent with little more than an embarrassed footnote to explain the divergence.[4]

Locke v. Davey was decided in 2004, and involved a publicly funded scholarship offered by the State of Washington.[5] By its terms, the scholarship program prohibited the application of the funds to the study of theology or other “devotional” studies.[6] This guideline was consistent with the Washington State Constitution, which explicitly prohibits direct funding of religious institutions or activities with taxpayer dollars.[7] Davey, a public scholarship recipient, brought suit after learning that his scholarship funds could not be applied to the pastoral ministry program at his chosen school.[8]

The Supreme Court held that prohibiting the use of scholarship funds for religious instruction was not violative of the Free Exercise Clause,[9] and that Washington’s scholarship program was constitutional.[10] The Court engaged in a balancing test, finding that the State had a historic and substantial interest in not funding religious activity,[11] and that the burden placed on Promise Scholars by excluding religious studies was relatively light.[12]

In his dissenting opinion, Justice Scalia argued that by singling out devotional studies as the single academic area to which the public scholarship funds could not be applied, Davey was denied a public benefit on the basis of religion. This, argued Scalia, “violate[d] the Free Exercise Clause no less than if [the State] had imposed a special tax.”[13]

Now, in 2017, the Supreme Court has changed its mind. Now, publicly funded grant programs are unconstitutional for failure to include religious entities among their beneficiaries. Now, the Supreme Court has announced, the thirty-nine states whose state Constitutions explicitly prohibit public funding of religion are themselves discriminatory.[14] Now, in 2017, not only may public funds be appropriated to religious entities, the Supreme Court has told us that they must be.

Rather than publicly funded state scholarships, Trinity Lutheran involves state grants for playground resurfacing.[15] Similar to the Washington State Constitution, the Missouri State Constitution bars public funding of religion.[16] In order to comply with the State Constitution, the publicly funded playground resurfacing grant was unavailable to religious applicants.[17] Trinity Lutheran nonetheless applied.[18] The application was rejected, and the church brought suit. Rather than following Locke, the Court instead wrote that the State’s rejection of Trinity Lutheran’s application was unconstitutional.[19] Drawing from the language of Justice Scalia’s dissent in Locke, the Court held that the grant constituted a public benefit, and could not be denied on the basis of religion.[20]

In attempting to differentiate the two cases, the Court explained that the scholarship recipient in Locke was denied funds not on the basis of what he was, but on what he proposed to do.[21] In contrast, reasoned the court, Trinity Lutheran was being denied funds solely on the basis of what it was—a religious institution—a result abhorrent to the United States Constitution.[22]

Perhaps the strongest statement of the inadequacy of this “distinction” was articulated by Justice Gorsuch in his concurring opinion. The concurrence underscores the “instability” of the line Chief Justice Roberts articulates, asking, “Does a religious man say grace before dinner, or does a man begin his meal in a religious manner?”[23] If the first, denying this right would be unconstitutional under the Court’s newly articulated standard, because it has been denied on the basis of what the man is. If the second, the man might constitutionally be prevented from his act, because it has been denied on the basis of what he proposes to do. Justice Sotomayor’s dissenting opinion illustrates this point. In it, she notes that the church’s playground is used in conjunction with its mission to spread religious values and minister to the community. Viewed from this perspective, Trinity Lutheran was denied funds not on the basis of what it is, but what it proposed to do.[24] This is a difference without meaning. The Court’s decision becomes an exercise in framing, undermining the Court’s consistency and eroding public confidence in the justice system. By constructing this meaningless linguistic difference, the Court empowers itself to issue arbitrary determinations based on whether a particular program is favored by the Court, rather than any legitimate ruling on its constitutionality. The only true difference between Trinity Lutheran and Locke is thirteen years, and the political persuasion of the bench.

The plurality’s attempt to differentiate Locke through linguistic gymnastics is as transparent as it is unworkable in practice. The Court unconvincingly acknowledges this by including the hotly contested footnote three, which attempts to confine Trinity Lutheran to its facts.[25] By limiting the decision’s scope, the Court is demonstrating that it knows it has created bad precedent while making a halfhearted, lukewarm attempt to preserve the thirty-nine state constitutions prohibiting public funding of religious entities.[26] This does nothing to address the substantive and historical connotations of separation of church and state, which inspired and informed the more explicitly prohibitive state constitutions.

It is difficult to suppose that Chief Justice Roberts was not cognizant of this analytical weakness at the time he penned the opinion. It is cases like Trinity Lutheran that lead the general populace to question the legitimacy of the Supreme Court—split as it is along ideological lines. If a religious institution cannot be denied public funds on the basis of its religious affiliation, what is to prevent parochial schools across the country from receiving the same public funding as the nation’s public schools? Trinity Lutheran largely collapses the separation between church and state, and in so doing threatens religious freedom and civic liberty for people of all political and religious persuasions. In attempting to protect the right to Free Exercise, the Court strays too far toward Establishment.[27] It is an irresponsible decision, delivered by a Court emboldened by the swing of the political pendulum to the far right.

Finally, it is worthwhile to consider the differing roles and effects of Scalia’s dissenting opinion in Locke and Gorsuch’s concurring opinion in Trinity Lutheran. Most obviously, Scalia’s dissenting view that denial of “publicly available benefits” on the basis of religious affiliation constitutes discrimination is now the majority, rather than the minority view.[28] The Court has taken a marked step to the right, and the strongest conservative voice on the bench is now penning a concurrence, rather than a dissent. Gorsuch’s opinion in Trinity Lutheran disclaims the majority’s attempts to differentiate Trinity Lutheran from Locke and—given the previously discussed quality of the majority opinion—does so convincingly. Justice Gorsuch does not take the fiery and impassioned tone customary in Scalia’s opinions. He doesn’t have to. Gorsuch finds himself on the side of the majority.

While the political power of a representative democracy must follow the leanings of the electorate, our system of government requires that the judiciary retain independence. Our common law system demands consistency in application of the law, particularly in the resolution of Constitutional questions. The Supreme Court owes fidelity to the document that has governed our nation for more than two hundred years, and such flippant rewriting of precedent must be observed with something more than apathy.

  1. Trinity Lutheran v. Comer, 137 S. Ct. 2012 (2017).
  2. Id. at 2025 (Gorsuch, J., concurring).
  3. Locke v. Davey, 540 U.S. 712 (2004).
  4. See infra note 25 and accompanying text.
  5. Id. at 715–16.
  6. Id. at 716–17.
  7. Wash. Const. art. I, § 11 (“No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”). See also Trinity Lutheran, 137 S. Ct. at 2037 (Sotomayor, J., dissenting) (cataloging thirty-eight States whose constitutions expressly prohibit public funding of religion).
  8. Locke, 540 U.S. at 718.
  9. See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”).
  10. Locke, 540 U.S. at 725.
  11. The State interest in not funding religiously-affiliated entitles cannot be understated. See, e.g., James Madison, Memorial and Remonstrance Against Religious Assessments, in James Madison: Writings 29 (Jack N. Rakove ed., 1999) (arguing that general funds raised through taxation cannot be applied to support religious institutions, for reasons including freedom of individual conscience, maintaining a peaceful civil society, preventing oppression, preserving the legitimacy of the nation’s laws, and freedom of religion). See also Lemon v. Kurtzman, 403 U.S. 602, 622 (1971) (discussing the “political potential” of state programs that use taxpayer money to fund religious institutions, and that if legislation may constitutionally create public funding of religion, political candidates will be forced to campaign on whether they support public funding of religion, inevitably leading “many people confronted with issues of this kind” to “find their votes aligned with their faith”).
  12. Locke, 540 U.S. at 725.
  13. Id. at 2.
  14. See supra note 6 and accompanying text.
  15. Trinity Lutheran, 137 S. Ct. at 2014.
  16. Mo. Const. art. I, § 7 (“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”).
  17. Trinity Lutheran, 137 S. Ct. at 2017.
  18. Id.
  19. Id. at 2024–25.
  20. Compare Locke, 540 U.S. at 727 (Scalia, J., dissenting) (“Washington . . . has created a generally available public benefit . . . [and] has then carved out a solitary course of study for exclusion: theology.”), with Trinity Lutheran, 137 S. Ct. at 2015 (“The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”).
  21. Trinity Lutheran, 137 S. Ct. at 2023.
  22. Id.
  23. Id. at 2026 (Gorsuch, J., concurring).
  24. Id. at 2029 (Sotomayor, J., dissenting).
  25. Justices Thomas and Gorsuch each wrote separate concurrences to disclaim footnote three of the plurality’s opinion, which reads “[t]his 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.” Id. at 2024 n.3.
  26. See supra note 6 and accompanying text.
  27. Although both parties conceded that the Establishment Clause was not at issue, Justice Sotomayor’s dissent chastises the plurality for ignoring the full implications of providing public funding to a church. Trinity Lutheran, 137 S. Ct. at 2028 (“Constitutional questions are decided by this Court, not the parties’ concessions. The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the . . . playground, in conjunction with its religious mission. The Court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents.”).
  28. Locke, 540 U.S. at 727 (Scalia, J., dissenting)