EVISCERATING A HEALTHY CHURCH-STATE SEPARATION.

• Author: Chemerinsky, Erwin

INTRODUCTION

In its recent ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, (1) the U.S. Supreme Court took an extraordinary step in a remarkably facile way. For the first time in its history, the Court ruled that the United States Constitution requires states under certain circumstances to provide taxpayer funds to churches and other houses of worship. The Court relied on the Free Exercise Clause of the Constitution to force the State of Missouri to provide funding to a church in contravention of an anti-establishment clause contained in that State's own constitution.

Why an extraordinary step? Because deeply ingrained in the history of American religious freedom is a fight against coerced taxpayer funding of religious communities to protect rights of religious conscience and a healthy separation of church and state. This no-funding principle was reflected in many of the constitutions of the original states, in the federal Free Exercise and Establishment Clauses as they came to be understood soon after adoption, and in provisions of most state constitutions adopted later in the nineteenth century that remain in place today. (2)

Why a remarkably facile way? Because with nary a nod to these historic concerns, the Court treated the anti-establishment clause of the Missouri Constitution--which bars including religious organizations in a taxpayer-funded benefits program--as a form of invidious religious discrimination that warranted strict scrutiny under the Free Exercise Clause. (3) In other words, the Court viewed the application of Missouri's anti-establishment clause--which has been in its constitution since the nineteenth century and readopted in 1945--as being comparable to a Florida city's criminalization of a minority religious sect in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, (4) Not only was the Court's dismissive attitude towards Missouri's anti-establishment choices profoundly ahistoric and hypocritical for Justices that profess in other areas to care strongly about federalism and originalism, (5) but its reliance on the federal Free Exercise Clause to force public funding of churches was particularly perverse given the early understanding of free exercise rights that developed in our country which barred such funding.

Moreover, what the Court's decision essentially means is that communities of religious worship will be entitled to participate in taxpayer-funded grant programs on a par with secular organizations--at least to the extent churches, synagogues, mosques, temples, etc. can plausibly characterize the use of the funds as being for secular purposes. (6) But as the Court has itself recognized in other cases, money is fungible and when saved in one place more money is freed up to be used in others (7)--particularly to bolster spending designed to promote a community's religious beliefs. Although some may view this as a desirable development, for a nation committed to the principle of religious freedom--including the right of taxpayers not to have their monies going to support religious beliefs and practices they do not agree with--it is a striking blow to the healthy separation of church and state.

One might attempt to defend the Court for falling into this error on at least four different grounds. First, the seemingly innocuous facts of the Trinity Lutheran case itself, involving as it did funding for playground resurfacing, may have played a key role in the Court's decision. (8) Second, the way the Court's more conservative justices have modernly loosened up federal Establishment Clause constraints on voluntary choices made by various government entities to include religious institutions in public spending programs. Third, the Court's incorporation of federal Establishment Clause protections against state and local government actions despite the fact that that clause was originally designed in part to bar federal interference with state establishment choices. And fourth, the surface allure of the late Justice Antonin Scalia's biting dissent in an earlier case posing an issue similar to Trinity Lutheran--which essentially provided the Court with a roadmap for its current decision. But none of these reasons justify the Court's holding.

As to the facts of Trinity Lutheran, Missouri had rolled out a grant program to help eligible non-profit organizations use recycled tires to give their playgrounds rubber surfaces--paid for by a special tax placed on tire purchasers. (9) When the daycare center of a church applied for a grant, it was denied on the basis of an anti-establishment clause in the Missouri Constitution because the center was operated as a ministry of the church. (10) Now, to deny a church's daycare center money to resurface its playground simply because it is a church, might seem harsh and unfair even though Missouri is hardly a state known for animosity towards religion. But the Court's treatment of the State's decision as being tantamount to such animosity--thus justifying the strong medicine of strict scrutiny--was wrongheaded not only because it rested on false premises but also because of the dangerous precedent the case sets. After this decision, any time a state declines to provide funding to devotional institutions when it adopts a public spending program, the state's action will likely be subject to strict scrutiny and invalidated. Such compelled public funding of churches and other worship institutions is, in important part, what free exercise and antiestablishment clauses in federal and state constitutions were historically understood to prevent. (11)

The second potential ground of defense fares no better. The Warren and Burger Courts generally interpreted the federal Establishment Clause to mean that voluntary public aid to religious institutions, and particularly private religious schools, could not impermissibly advance their religious objectives. (12) In other words, under the test of Lemon v. Kurtzman, (13) such funding had to be neutral towards religion--it had to be part of a program with a secular purpose that was generally available to secular and religious institutions alike, and could not impermissibly advance an institution's religious mission. (14) However, more conservative majorities on the Rehnquist and Roberts Courts have shifted the Establishment Clause neutrality calculus to essentially require facial neutrality only. Public funding still needs to be through a generally available secular program, but so long as it is, it becomes irrelevant to what extent the funding may disproportionately benefit religious institutions and their missions. (15) Moreover, those same majorities have tightened the rules of standing for bringing Establishment Clause claims, essentially insulating many public funding programs that benefit religious institutions from judicial review. (16) The overall result of these developments is to allow more public aid to flow to religious institutions, and particularly Roman Catholic schools, should government entities decide to make it available.

Yet it is one thing to alter federal constitutional rules to permit this result, but quite another to impose such norms on states through the federal Free Exercise Clause by requiring them to make available funding to religious institutions, whenever they make it available to secular organizations, if their own establishment clause rules prohibit it. This coerced conformance to federal Establishment Clause norms not only is profoundly disrespectful to federalism values the conservative majorities often extoll, (17) but also flies in the face of the early historical understanding of religious freedom despite the fact that the conservatives frequently emphasize the importance of such understandings to constitutional interpretation. (18)

This brings us to the third potential ground of defense--that the historical understanding of the federal Establishment Clause's purpose to in part protect state establishment choices from federal interference was jettisoned by the Court when it incorporated that clause against state and local action through the Fourteenth Amendment's Due Process Clause. (19) Justice Clarence Thomas has often inveighed against the logic of incorporating federal Establishment Clause protections against state action when it was designed in part to protect state establishment choices. (20) Yet Justice Thomas was curiously silent on this point in joining the majority opinion in Trinity Lutheran. Nonetheless, it is one thing to prohibit states through the federal Establishment Clause from getting too involved with religious funding or sponsorship, but quite another thing altogether to say that such incorporation affects state choices to retain more protective rules against establishment than the Court has interpreted the federal clause to require. It is a basic canon of constitutional law that states can choose to be more protective of constitutional rights than the federal Constitution requires. (21) Hence, forcing states, through the federal Free Exercise Clause, to effectively adhere to the conservative justices' vision of what degree of church-state separation is desirable as a matter of federal Establishment Clause principles stands this canon on its head.

This brings us to our last potential defense for the Court's ruling--Justice Scalia's reasoning in his dissent in the related case of Locke v. Davey, (22) which Chief Justice Roberts essentially echoed in his majority opinion in Trinity Lutheran. Locke involved a federal Free Exercise Clause challenge to a Washington State scholarship program that excluded theology degrees from those that grants could be used for due to the state constitution's establishment clause--a provision that, inter alia, barred the use of public funds for purposes of religious instruction. (23) Writing for the Court, Chief Justice Rehnquist rejected the challenge, adopting a balancing test that weighed the burden the...