This is a journalistic account of a moot court of Trinity Lutheran Church v. Comer held on June 6, 2017 by Steven Mazie's American Supreme Court class at Bard High School Early College-Manhattan. Mazie is Professor of Political Studies at Bard and Supreme Court Correspondent for The Economist. The (actual) Supreme Court heard arguments in Trinity Lutheran were on April 19 and is set to release its opinion on Monday, June 26.
WHEN a spirited and expanded 16-justice Supreme Court considered Trinity Lutheran Church v. Comer on Tuesday, June 6th, it was difficult to get an early read on where many of the justices stood. Tough questions greeted counsel for both sides of this case—a seemingly mundane dispute about playgrounds and tire scraps that has potentially wide-ranging implications for the contours of religious liberty in the United States. In the end, a strict version separation of church and state won the day—much to the consternation of a church in Columbia, Missouri.
Rising for the petitioners were lawyers Stasya Rodionova and Emma Bally, who made an energetic, rapid-fire plea for the church, while Grace Wan and George Scott, arguing for the state of Missouri, had a somewhat cooler—yet methodical and ultimately successful—stint at the lectern. The issue is whether Missouri violated the Free Exercise Clause of the First Amendment or the Equal Protection Clause of the 14th Amendment when it refused to pay for a church-run pre-school to resurface its playground with a rubberized material made of melted down tire scraps. The Learning Center (TLC), Trinity Lutheran Church’s school, got a rejection letter from the state after applying for a competitive grant to renovate its playground. But the decision had nothing to do with the merits of the application—in fact, its submission ranked fifth (out of 44 entries) based on a number of objective, neutral criteria. The impetus for the denial was a provision of the Missouri constitution prohibiting the “direct or indirect” expenditure of state monies toward churches or other religious entities.
Ms. Rodionova argued that “categorically excluding” the church-run school from the Tire Scrap Program was not necessary to guard against an Establishment Clause violation and was inconsistent with the right to religious free exercise. This inspired a number of questions. Justice Zoe Fruchter noted that 39 states have constitutional provisions similar to Missouri’s. Should all those be changed? Justice Lily Burnes Heath wondered whether Trinity Lutheran could close its gates to members of the community on afternoons and weekends—or even ban non-Lutherans altogether. In response to these queries and follow-up questions from Justices Mariana Lucero and Kaltrina Novaj, Ms. Rodionova said this might “change the state’s perspective”, but did not attempt to draw a clear line between legitimate and illegitimate uses of a state-subsidized playground attached to a religious institution. When she argued that withholding the grant is analogous to withholding fire and police protection from churches, Justice Arjuna Bharathan protested that the Tire Scrap Program is a competitive, application-based initiative but that “there is no need to apply” for a visit from the fire department when a church is engulfed in flames.
Several justices asked how excluding the church from a grant violates the constitutional right to religious free exercise at all, while Justice Helena Klonis noted that the school “teaches a Christian worldview”. Ms. Rodionova replied that withholding the grant does nothing to facilitate religion but does unconstitutionally disadvantage religious people. Justices Lola Lafia and Miranda Leong-Hussey inquired into other uses of the playground space. What about prayers held outside “on a sunny day”, or Sunday school? Ms. Rodionova chased down all these questions, noting that a mere “cushioned” surface on a playground cannot be interpreted as an aid to religion.
Ms. Bally ably defended the church’s unequal-treatment claim under the 14th Amendment, arguing that the state’s “over-exclusionary” policy disserves not only her client, the Lutheran church, but “temples, mosques” and any other religious entity that might operate a playground. When Chief Justice Doreen Adutwumwah jumped in, asking whether the lawsuit pertains to all religious groups or just the Trinity Lutheran church, Ms. Bally urged the Court to adopt a “pragmatic” approach, citing Widmar v. Vincent, to argue that state policies should benefit all children—religious and secular alike. After Justice Kyle Greene took issue with this reading of Widmar, Justice Leong-Hussey introduced a challenging hypothetical: does the Establishment Clause permit a program that reimburses churches and other non-profits for metalwork, if churches use them to build child gates on church windows? This grant, like Missouri’s Tire Scrap Program, would aim at child safety. But it applies only to children inside the church building—Lutherans, nearly exclusively—undertaking a religious enterprise. Ms. Bally claimed this is a “different case” and reiterated her position from Miller v. Johnson that the Equal Protection Clause requires the state to treat people as individuals.
Another difficult question came from Justice Paloma Lopez-St. Denis, who asked how, if the grant provides an exclusively secular benefit, not receiving the grant could possibly be a violation of the free exercise of religion. Ms.Rodionova conceded that the exclusion from the Tire Scrap Program did not harm direct religious practice; the problem, she explained, is discrimination in the dissemination of secular goods.
Missouri’s attorneys faced a barrage of questions in their thirty minutes as well. Encouraging the justices to read the plain text of the First Amendment, a feverish but undaunted George Scott noted that there is no sense in which being excluded from a rubber grant “prohibits” the free exercise of religion. He also took up an argument of framers’ intent introduced by the petitioners. It is “surprising” that the church brought up James Madison, the architect of the First Amendment, Mr. Scott told the justices, since it was Madison, in his “Memorial and Remonstrance,” who argued that taxing people as few as “three pence” to fund the “sustenance of houses of worship” is a constitutional evil to be avoided at all costs.
When Justice Jake Rubin-Miller asked whether withholding funds for playground safety meant that the fire department would have to watch grimly while a church burned down—lest the state spend a dime benefiting religion—Mr. Scott asserted that “the fire should be put out.” There is a basic difference between a general government service provided equally to all, he said, and a special grant for a non-essential good like a cushier playground. One slightly awkward moment came when Justice Lafia asked why the Department of Natural Resources took the time to rate the church school before rejecting it. “Why did the DNR even look at the application?” she said. Mr. Scott manufactured no answer: “I wish I knew,” he said. “It must have been a bureaucratic mistake.”
Justice Ravita Choudhury then posed a long question premised on Roemer v. Board of Public Works Board of Maryland, a case finding that when there is a secular purpose at hand, the state may provide funding for religious institutions without violating the Establishment Clause. Isn’t it the case, she asked, that there is no need for Missouri to fret about the playground “as long as rubber doesn’t advance religion”? At this point, Justice Fruchter jumped in to recite the three prongs of the test first articulated in Lemon v. Kurtzman (1971): that a government policy must have a secular intent, a secular purpose and not “entangle” the state with religion. Mr. Scott noted that a “severe entanglement” is inherent in a Scrap Tire Program that includes religious entities among its potential recipients. Justice Greene then raised the spectre of a “giant cross” design in the playground surface, noting that Trinity Lutheran just wanted a “plain rubber” surface with no sectarian images. Why isn’t that acceptable? Because “we can’t expect taxpayers to pay” for renovation of a church’s property, Mr. Scott replied. “It is the church’s responsibility.”
In a switcheroo-style hypothetical—her second zinger of the morning—Justice Leong-Hussey asked whether it was permissible for secular public schools, under the Missouri state constitution, to lend their playgrounds or classroom spaces to religious groups (whether for a fee or for free). Isn’t that (also) using state funds to support religion? Mr. Scott praised this as a “great hypothetical” and seemed to indicate such an arrangement would be fine, but he was cut off before he could fully answer the question. Justice Choudhury floated the idea of taking a government survey of everybody in the city of Columbia. If everyone, or just a majority, of the people approved of providing state funds to the Trinity Lutheran pre-school, what then? Mr. Scott’s answer: “Then the Missouri state constitution is put in question. It is supposed to represent the people of the state.” But without a constitutional convention, he implied, the present rule stands.
Ms. Wan then took over from her partner, handling Justice Julia Meltzer’s question involving the correct standard of review for government policies that distinguish between religion and non-religion. And she addressed Justice Klonis’s question: “How can you ensure that they’ll use the playground for secular purposes, and not just say that to get the grant?” Justice Lopez-St. Denis clarified that before 1985, the TLC was its own entity, independent and not operated by the church. Under these circumstances, Ms. Wan said, TLC “would qualify for the grant.” But given the direct link between the school and Trinity Lutheran Church, she said, today such a subsidy is forbidden by the Missouri constitution.
The respondent’s argument closed with colloquy between Ms. Wan and Justices Lola Lafia, Colleen McCoy and Arianna Martinez Perry. Ms. Wan emphasized that the present case is “indistinguishable fromLocke v. Davey” in which the state of Washington’s own no-aid clause prevented it from funding religious scholarships. She also noted, in the Equal Protection context, that there are no precedents in which strict scrutiny has been found to be triggered when a policy distinguishes between “all religion” and “non-religion.” Strict scrutiny only applies when a specific religious group is targeted for disfavorable treatment, she said, such as in Lukumi.
In her short rebuttal, Ms. Rodionova lashed into the respondents for giving a “rudimentary meaning” to the Free Exercise Clause, an interpretation that “ignores precedent” and good sense alike. “How,” she said, “can rubber advance religion in any way?” There is “no valid justification for barring TLC from receiving public benefits as equals.” At this, Justice Martinez Perry noted that the First Amendment primarily protects “people” in their religious missions, not “religious institutions” seeking to advance their cause. But an “institution represents individuals,” Ms. Rodionova retorted.
A conference open to all
As the drama of the oral argument drew to a close, the counsel sat down and the justices—in an extraordinary and unprecedented bout of transparency—opened their judicial conference to the public and the press. The nearly hourlong conversation changed only one vote—that of the chief justice, who was drawn away from her support of the petitioner to side with respondent—but the justices charitably recounted both sides’ strongest arguments in the course of their discussion.
Most of the justices who supported the state’s right to exclude Trinity Lutheran from the Tire Scrap Program disagreed with the government’s framing of the issue. They preferred to see the exclusion as a rational and permissible choice of the people of Missouri rather than a move that was necessary to preserve the federal Establishment Clause. Even one of the most strongly “separationist” justices, Arjuna Bharathan, said his support for the respondent did not turn on the risk of an Establishment Clause violation. Justices Meltzer and Fruchter sought to throw some water on the petititoner’s heated rhetoric regarding the fate of the children. “It’s not a question of public safety anymore,” Justice Meltzer said, “since the pre-school has since added a rubber surface to its playground.” And Justice Fruchter commented that even if there is some discrimination at play, “it is not exceptional in terms of cruelty” to the church, to the school, or to its diminutive students.
Finally, in an interesting discussion of Footnote Four of the Carolene Products decision, the majority decided that Trinity Lutheran is unworthy of any special judicial solicitude under the Equal Protection Clause. Since the exclusion was general and applied to all religious entities, it did not disadvantage a “discrete or insular minority” and did not, therefore, require the state to show that its interest in limiting its grant to secular institutions was “compelling.” Ultimately, a federalist spirit, coupled with “play in the joints” offered under Locke v. Davey, motivated the majority to side with the respondent. States can go further than the federal constitution in dividing religion from state, the justices held. The vote was 12-4, with opinions fully justifying this result (or dissenting from it) due to be released on June 9th.
Steven Mazie is Professor of Political Studies at Bard and Supreme Court Correspondent for The Economist. He can be followed on Twitter at @stevenmazie.