As the Supreme Court continues to fill its schedule for October Term 2016, one particularly important case has yet to be scheduled for argument. The petition for certiorari in Trinity Lutheran Church of Columbia, Inc. v. Pauley was filed last November by a Lutheran church seeking to challenge a little-known provision of the Missouri state constitution that forbids state funds from going “directly or indirectly” to any “church, sect, or denomination of religion.” The Court granted certiorari in January, and although Trinity Lutheran has been fully briefed since mid-August, the case remains in limbo. Whatever the reason for the delay, the decision is likely to reveal a great deal about the court’s trajectory in church-state relations cases well beyond this Term.
The facts of the case are straightforward. Since 1985, Trinity Lutheran has operated a pre-school educational and daycare center in the state of Missouri. In 1990, Missouri established a program that provides grants for rubber playground surfaces. Grants under the program are given to a variety of nonprofit organizations, including daycare centers, which then use the funds to resurface their playgrounds using recycled scrap tires. Trinity Lutheran applied for the program in 2012. But the program categorically excludes religious organizations from eligibility, and the state denied Trinity’s application. In its explanation for the denial, the state invoked Missouri’s Blaine Amendment, a state constitutional provision enacted during the late 19th century. Trinity Lutheran brought suit, alleging that its categorical exclusion from the program violates the Free Exercise, Establishment, and Equal Protection Clauses.
At the center of the case is the Supreme Court’s 2004 decision in Locke v. Davey, which held that a Washington state constitutional provision prohibiting funding for “religious worship, exercise or instruction, or the support of any religious establishment” did not violate the Free Exercise, Establishment, or Equal Protection Clauses. Chief Justice Rehnquist, writing for a 7-2 majority, rejected the claimant’s assertion that a state’s refusal to fund a degree in student’s devotional theology through a state scholarship program was facially discriminatory and thus presumptively unconstitutional. Importantly, Locke hinged on its conclusion that Washington’s constitution was not a Blaine Amendment motivated by hostility toward religion. The history of that provision, Rehnquist wrote for the court, was “simply not before us.” Rehnquist went further, noting that the challenged program included religion in its benefits, allowing students to attend accredited religious schools and even take religiously-oriented classes. Thus, Rehnquist wrote, there was nothing indicating “animus towards religion” and so the denial of funding for religious instruction was not “inherently constitutionally suspect.”
Missouri’s Blaine Amendment differs from the one at issue in Locke in several ways. As Trinity Lutheran notes, the Missouri constitutional provision was enacted in 1875, the same year that a similar federal amendment was proposed in the Congress by then-Representative James G. Blaine, who was attempting to rally Protestants to harness a tide of nativist and anti-Catholic sentiment. Missouri’s provision states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” As such, it reaches well beyond the scope of Blaine’s proposed federal amendment, which only forbade control of funds by a religious “sect.” Indeed, under a strict textual reading of Missouri’s Blaine Amendment, it is hard to see how state funds could ever be allowed to fund police or fire protection, rural electrification, facilitate municipal water or sewage service, or provide any other state-funded benefit otherwise available to the public since all of those services could constitute direct or indirect aid. Moreover, Missouri’s amendment appears to impose far broader prohibitions against funding religion than did the provision in Locke, which only addressed funding for religious instruction.
With that background in mind, Trinity Lutheran makes two principal arguments. The first is that the exclusion of all religious organizations from Missouri’s scrap tire program constitutes a civil disability based on religious status or identity that violates the Free Exercise and Establishment Clauses. The church points out that even under the state’s secular and neutral criteria for ranking grant program applications, it shone: The state ranked Trinity Lutheran fifth out of 44 applicants that year based on the level of detail in the application, quotes from vendors, installation plan, and so forth. The sole reason for the church’s exclusion from the program, it notes, was the categorical exclusion under the Blaine Amendment.
For that reason, Trinity Lutheran argues, and Missouri concedes, that the exclusion is not neutral or generally applicable toward religion. The exclusion is clear on the face of the program itself, so there is no need for the court to make inferences about the government’s intent as it had to in Church of the Lukumi Babalu Aye v. City of Hialeah. Indeed, how could the exclusion be neutral or generally applicable, the argument goes, when it categorically forbids the government from giving program funds to religious organizations based solely on whether they are religious?
Missouri responds that the religious exclusion is a legitimate exercise of state power under Locke. Denial of funds for a church playground “places no meaningful burden” on Trinity Lutheran’s religious practice, the state says, and the church’s claim is hobbled by a “lack of coercive effect” on religious practice. Under this theory, the Free Exercise Clause only prevents the government from “prohibiting” the free exercise of religion, and nothing about the scrap tire program “prohibits” free exercise. The Free Exercise Clause only requires that the State “not interfere with” the church’s religious activities. Trinity Lutheran is still free to “worship, teach, pray, and practice any other aspect” of its religion without state funding. The state “merely declines to offer financial support” to those activities, and the church is neither “prohibited from [nor] penalized” for religious exercise as a consequence of state action. Missouri points to the secular purpose of the playground resurfacing program as an indication that denial of that particular subsidy exerts even weaker pressure on free exercise than did the denial of funds for religious education at issue in Locke. (The state also denies that there is any connection between the state’s Blaine Amendment and religious bigotry, asserting that the provision exhibits nothing more than “traditional anti-establishment values.”)
Trinity Lutheran’s second argument is that the categorical religious exclusion constitutes a suspect classification that fails strict scrutiny under the Equal Protection Clause. In support of this argument, Trinity Lutheran points to its high ranking among other applicants for funds. This, the church argues, shows that it is similarly-situated to other potential program applicants, and thus the exclusion must be justified. The classification is suspect, it says, because it explicitly draws on “inherently suspect” distinctions like religion. Since strict scrutiny must apply, then, Missouri must show that the classification is based on a compelling interest. Missouri’s claimed compelling interest is weak, the church argues, because the purpose, criteria, and effect of the scrap tire program have nothing to do with religion and everything to do with protecting children from injuries. As the petitioner argues, “[i]t is certainly difficult to imagine a more secular program than using recycled tire material to prevent children from getting hurt as they run, climb, and swing on the monkey bars.” There is no rational basis, and therefore no compelling interest, that could justify the prohibition of all churches from participating in this sort of secular program.
Missouri responds that under Locke, unless the challenged law involves a violation of the Free Exercise Clause, an Equal Protection claim involving religious discrimination will receive only rational basis review. The rational basis for this classification lies within “anti-establishment” values. Moreover, Missouri argues, it does not create a suspect classification to differentiate between “religious” and “non-religious,” since the courts have often tolerated distinctions between religion as a whole and non-religion, although they have very rarely tolerated classifications that distinguish among religions or religious denominations. (Oddly, Missouri’s argument on this point fails to differentiate between religious exclusions that disadvantage religious exercise and those that that facilitate religion by exempting it from government restrictions.)
How the court resolves all of these questions will shed light on the Supreme Court’s likely trajectory on church-state relations in the next few years. If the Court extends Locke to this case, it will be going well beyond where previous courts have gone in allowing states to create religion-based exclusions. As one amicus brief argues, Trinity Lutheran’s claim would have passed muster even under the “no aid” decisions of the 1970s, which were often criticized for their perceived or actual hostility to religion. Those decisions turned on the relationship between the aid and the mission of the religious organizations, but even at the zenith of antiestablishmentarian fervor, the Supreme Court never found an “antiestablishment value” that required prohibiting state aid to religious schools through bus transportation, school lunches, or public health facilities that had obvious secular purposes. Indeed, if Missouri prevails, we could see states moving to occupy as much as possible of what the Supreme Court has called “play in the joints” between the Free Exercise and Establishment Clauses, excluding religious organizations from general welfare programs based solely on their religious character.
Trinity Lutheran will also tell us whether and how much the untimely absence of Justice Scalia, who was on the court when certiorari was granted last January, will shift the court’s church-state jurisprudence. It may well be that his absence is the reason for the court’s sluggishness in setting an argument date. He dissented with Justice Thomas in Locke, so many think that he could have been the deciding vote for certiorari in Trinity Lutheran. If other justices believe that he was the potentially deciding vote in the case, his post-cert absence might have left the court stuck with a 4-4 draw in this case, requiring default affirmance of the Eighth Circuit’s decision. Thus, this theory goes, right now the justices are waiting to hear the case until they have a tie-breaking ninth vote, either a confirmation of Judge Merrick Garland or someone else, before they hear the case. If this theory holds, then it’s very likely that the case wouldn’t even be argued until well into the next president’s first year, since the Garland nomination is effectively dead and the confirmation process for another nominee would take a few months to run its course. That could result in Trinity Lutheran being held over until October Term 2017. And depending on the composition of the Senate and its working relationship with the next president, that timeline might stretch even further.
A somewhat less probable theory is that the court is waiting to hear the case until after the election in an effort to be apolitical. This seems less likely because it seems much more politically expedient – and overtly election-dependent – than we typically see from the Supreme Court, particularly in a case that doesn’t have major electoral significance. As important as Trinity Lutheran is, it’s hard to imagine that many Americans’ votes are riding on the legitimacy of Missouri’s Blaine Amendment at this point in the election cycle. It’s also worth remembering that Trinity Lutheran is just one of the three cases granted in January that have yet to be scheduled, none of which is as important as this case. Since all three cases are probably being held for the same reason, this explanation seems less plausible. It’s impossible to say for sure, of course, but regardless, the future of Trinity Lutheran will most probably foreshadow the Supreme Court’s interpretive course in coming years.