- More conservative Supreme Court faces major dispute pitting religious freedom against LGBTQ rights
- 200-year history of service
- 'Enormous implications'
- What a SCOTUS decision over a church playground means for religious freedom in America
- The case started small — over the purchasing of tire rubber for a playground surface
- Trinity v. Comer has seen high-profile supporters on both sides — and not always along expected sectarian lines
- Trinity Lutheran Pops Up in Latest Religion Case
- Free Exercise of Religion and Trinity Lutheran
- After Trinity Lutheran
- Espinoza Takes Center Stage
More conservative Supreme Court faces major dispute pitting religious freedom against LGBTQ rights
Amy Coney Barrett was President Donald Trump's third Supreme Court nominee, following Associate Justices Brett Kavanaugh and Neil Gorsuch. Wochit
WASHINGTON – The Supreme Court has been very, very good for the cause of religious freedom in recent years. This summer alone, it sided with religious students, parents and employers in a trifecta of major rulings.
The high court has been kind to the cause of LGBTQ rights as well, granting same-sex marriage rights in 2015 and protection against employment discrimination this past June.
On Wednesday, both of those winning streaks will be on the line. Hours after the polls close on Election Day and with a new justice on the bench, the court will be confronted by a case in which one side has to lose.
At issue is the city of Philadelphia's decision to stop referring children in need of foster care to Catholic Social Services, for decades one of its most reliable contract agencies, after discovering that it would not place kids with same-sex couples.
The dispute pits the Constitution's guarantee of religious freedom against government bans on discrimination. When the court faced a similar case in 2018 involving a Colorado baker who refused to create a wedding cake for a same-sex couple, it issued a minor ruling that failed to resolve the question.
This time, the addition of Associate Justice Amy Coney Barrett gives the court's conservatives a 6-3 majority, putting at risk a 30-year-old Supreme Court precedent that made it difficult for religious groups to avoid neutral laws that apply to everyone. Several justices are eager to overturn the precedent – written, ironically, in 1990 by conservative Associate Justice Antonin Scalia.
The Supreme Court didn't always have nine justices, in fact, it had more. But what changed and made nine the number that stuck? USA TODAY
More: New Associate Justice Amy Coney Barrett could have immediate impact on American democracy
In recent years, the court has carved out protections for religious groups and individuals. It ruled that a Missouri church could receive federal funds, private corporations could avoid federal health care regulations regarding contraceptives, and a New York town board could open meetings with Christian prayers.
This year, the justices approved taxpayer support for religious education in some circumstances and let religious employers sidestep job discrimination laws and health insurance coverage for contraceptives.
The court refused to let employers discriminate against LGBTQ workers in a 6-3 ruling in June, but even then Associate Justice Neil Gorsuch reiterated the justices' respect for religious liberty.
More: Supreme Court grants federal job protections to gay, lesbian, transgender workers
“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution,” he wrote. “That guarantee lies at the heart of our pluralistic society.”
A woman and man pray outside the Supreme Court on Capitol Hill in Washington, D.C., on Oct. 27, 2020, a day after the Senate confirmed Amy Coney Barrett to become a Supreme Court justice. (Photo: Patrick Semansky, AP)
200-year history of service
The Archdiocese of Philadelphia has been serving abused, neglected and orphaned children for more than 200 years. But in 2018, the city learned from a local newspaper article that Catholic Social Services' policy did not allow placements with same-sex couples, so it blocked the agency from making new placements on anti-discrimination grounds.
More: Supreme Court to decide if foster care agencies can snub gay, lesbian couples due to religious objections
The foster care agency sued, but two lower federal courts refused to block the city's action. The U.S.
Court of Appeals for the 3rd Circuit ruled unanimously that the agency “failed to make a persuasive showing that the city targeted it for its religious beliefs or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”
“The city stands on firm ground in requiring its contractors to abide by its non-discrimination policies when administering public services,” the court said.
In asking the Supreme Court to reverse that decision, Catholic Social Services argued that under the city's policy, the archdiocese would have to violate its sincerely held beliefs.
“Philadelphia demands that a religious agency, an arm of a church, speak and act according to Philadelphia’s beliefs,” said Mark Rienzi, president of the Becket Fund for Religious Liberty, which is representing Catholic Social Services in court. “If it does not, Philadelphia will rid itself of the meddlesome agency. The Free Exercise Clause was made for cases this one.”
Sharonell Fulton, for whom the case is named, has worked with Catholic Social Services in Philadelphia to foster 40 children over 26 years. In a video posted on Becket's website, she said her goal is to “show them some love, be there when they need you.”
“This is what I want to do, and I wouldn't be able to do it without Catholic Social Services,” she said.
The Trump administration also is opposing the city policy, but it does not argue that the court should overrule its precedent. As was the case with the Colorado baker, the Justice Department says the court can rule more narrowly for Catholic Social Services, perhaps city officials' hostility.
Philadelphia told the court it is eager to have the agency back as a full partner in recruiting and certifying foster homes, but only if it abides by “the same nondiscrimination requirement as every other agency.” In the meantime, the agency can continue to manage group homes and provide other social services to foster children.
“The Constitution does not grant CSS the right to dictate the terms on which it carries out the government’s work,” wrote Neal Katyal, a former U.S. acting solicitor general representing the city.
The American Civil Liberties Union, which is representing a legal services agency and an LGBTQ family advocacy group in the case, says a religious exemption for foster care could endanger other programs, such as after-school care, food banks and homeless shelters.
Advocates for foster children also note that a large number of children needing foster care are gay, lesbian, bisexual or transgender, making it illogical to exclude LGBTQ couples from the program.
“Religious beliefs should not come before the needs of children,” said Stephanie Haynes, executive director of Philadelphia Family Pride.
The issue has arisen elsewhere. In Greenville, South Carolina, Brandy Welch and Eden Rogers sought to foster children through Miracle Hill Ministries, the state's largest provider of homeless services. As a same-sex married couple, they were rejected.
Now they are among people on both sides of the emotionally charged issue whose stories are told in scores of friend of the court briefs to the Supreme Court.
“I couldn’t just take a 'no,' because it wasn’t just a no to me or my wife, it was a no to hundreds of children,” Rogers said. “I felt an overwhelming need to just stand up for these kids.”
Welch, who grew up in a conservative, Christian home, said the foster care system also needs families in which gay, lesbian or transgender children would be welcome.
“I can only imagine how many kids are LGBTQ in the system that end up in Christian homes where they may not be able to be themselves,” she said.
Amy Coney Barrett said her Catholic beliefs would not influence her legal opinions, but critics say her previous associations create doubt. (Photo: Fred Schilling, Collection of the Supreme Court of the United States)
Both religious freedom and LGBTQ rights were hot topics last month at Barrett's Senate confirmation hearing.
Republicans lauded her devout Catholicism and personal opposition to abortion, which she said would not influence her legal opinions. Democrats claimed her association with groups that fight for religious exemptions from anti-discrimination laws represents a risk for gay rights.
More: Amy Coney Barrett was trustee at private school with anti-gay policies
For her part, Barrett described her faith as important, but irrelevant to her jurisprudence. As for LGBTQ rights, she said, “I have never discriminated on the basis of sexual preference and would never discriminate on the basis of sexual preference.”
More: Amy Coney Barrett: Talented judge, popular professor brings solid conservative credentials
The phrase “sexual preference” got her in hot water with the LGBTQ community, because scientific research has shown sexual orientation is not a choice. In response, she said, “I certainly didn't mean, and would never mean, to use a term that would cause any offense in the LGBTQ community.”
While the Supreme Court has issued landmark rulings against discrimination and in support of LGBTQ rights in recent years, several conservative justices have voiced concern that religious freedom was trampled in the process.
Four of the court's conservatives – Samuel Alito, Clarence Thomas, Gorsuch and Brett Kavanaugh – wrote in 2019 that the Employment Division v. Smith opinion from 1990 “drastically cut back on the protection provided by the Free Exercise Clause.”
And just last month, Thomas and Alito wrote that as a result of the 2015 same-sex marriage decision in Obergefell v. Hodges, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination laws.”
Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, said Barrett's replacement of the late liberal Associate Justice Ruth Bader Ginsburg increases the chance that the court eventually will overrule its 1990 precedent. That could lead to broad religious exemptions from anti-discrimination laws, he said, making the foster case one with “enormous implications for people's lives.”
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What a SCOTUS decision over a church playground means for religious freedom in America
Supporters rally outside of the US Supreme Court during oral arguments for Trinity Lutheran v. Comer outside of the Supreme Court in April. Photo by Mark Wilson/Getty Images
Same-sex marriage. Abortion. Playgrounds?
Next to some of the more hot-button cases that have come up before the Supreme Court in recent years, Trinity Lutheran v.
Comer, which was decided Monday morning in favor of Trinity Lutheran Church, seems almost incidental.
The case began in 2012, when a Lutheran preschool in Columbia, Missouri, was denied state funds to purchase used rubber tires to resurface its playground because it’s a religious institution.
But despite (indeed, because of) the relatively un-dramatic facts of the case, Trinity Lutheran v.
Comer could potentially be one of the most significant SCOTUS decisions of the year, setting the tone for generations of legislation about the separation between church and state on the state level, and potentially paving the way for more radical education reform, the use of state vouchers for religious schools.
The case started small — over the purchasing of tire rubber for a playground surface
Back in 2012, several nonprofit organizations, including Trinity Lutheran Church, in Columbia, Missouri, applied for state grants to purchase recycled tire rubber. In Trinity’s case, the rubber would be used to repave the playground of its early childhood education center.
The nonprofits were ranked by Missouri’s Department of Natural Resources, and Trinity came fifth of 44 candidates.
The top 14 candidates were slated for funding, but Trinity was judged ineligible the state constitution, which states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
The church sued Missouri’s director of natural resources, Sarah Parker Pauley, arguing that their ineligibility violated the federal First Amendment — they were denied free exercise of religion and freedom of speech — and the 14th Amendment, which guarantees equal protection under state law.
A federal district court for the Western District of Missouri dismissed the case, prompting Trinity to take the case to the Eighth Circuit Court of Appeals.
The church argued once again that Article 7, Section 1 of Missouri’s constitution infringed on their First Amendment free exercise of religion (dropping the free speech argument) in addition to 14th Amendment rights.
The circuit court affirmed the district court’s dismissal.
Finally, Trinity appealed to the Supreme Court in Trinity Lutheran v. Comer (Carol Comer is Pauley’s successor).
In January 2016, the justices agreed to hear the case — only for conservative Justice Antonin Scalia to die a month later, leaving behind a split jury and an unfilled space for the remainder of that year.
Since then, the case has been marked by a year of uncertainty, as the hearing was continually delayed — most ly due to the possibility of a four-four split in a divided court — while various interested parties filed amicus curiae briefs in support of one party or the other.
Finally, the Supreme Court, including recently confirmed Trump nominee Neil Gorsuch, started hearing oral arguments this spring. By then, the specifics of the Trinity Lutheran case were largely moot. On April 13, Missouri’s Republican Gov.
Eric Greitens announced that Missouri would consider religious institutions for public funding, excoriating “government bureaucrats … under orders to deny grants to people of faith who wanted to do things make community playgrounds for kids.
” But both parties agreed that the case should proceed anyway, in part because there’s no way to guarantee that Greitens’s policy is permanent.
Trinity v. Comer has seen high-profile supporters on both sides — and not always along expected sectarian lines
Supporters of the church argued that Missouri’s law, as it stands, is unconstitutional because it denies equal protections and treatment to the church only on the grounds that it is a church.
As the Christian-affiliated American Center for Law and Justice, wrote in an amicus brief in support of the church, “while government may not establish a church, it also may not categorically relegate religious institutions to second-class status.
” Here, the organization interprets Missouri’s law as a violation of the 14th Amendment.
It’s not just Christian-affiliated organizations that supported the church, either; the Union of Orthodox Jewish Congregations of America filed another brief arguing that the Supreme Court’s decision could set a precedent depriving Jewish schools of necessary funds for, say, disaster preparedness or security, exposing “religious institutions to significant health, safety and security dangers.”
There’s also a case to be made that aid to certain religious organizations’ outreach programs is in the public good, and to threaten them is to deprive vulnerable individuals of much-needed services. This is particularly pertinent when it comes to, say, Catholic hospitals, which comprise one in every six hospitals in the US.
At what point does “common good” end and special treatment begin, especially when it comes to programs for funding that are meant to be open to all neutral criteria? As Supreme Court Justices Elena Kagan and Stephen Breyer pointed out during arguments, should a church be denied access to, say, police or fire protection? How were the health hazards of letting children play in an unsafe playground significantly different?
Supporters pointed to other cases in which long-held state laws known as Blaine Amendments (initially enacted to counter the influx of immigrants by barring federal aid to Catholic organizations) have been used to threaten religious or religiously affiliated organizations that have partnered with the state to affect a public good.
For example, in Florida, two Christian prison-ministry organizations that partnered with the state to provide services — the Prisoners of Christ and Lamb of God ministries, which catered to recently released felons — were three times more successful than the national average when it came to preventing recidivism.
In 2016, the humanist group Center for Inquiry challenged the funding legally but were unsuccessful.
Perhaps even more convincingly, because Trinity Lutheran’s aims in this situation are entirely secular (i.e., paving a playground), their supporters argued that the case couldn’t be compared to, say, the precedent of Locke v. Davey (where money couldn’t be used to fund theological training).
On the other hand, supporters of the state pointed out that — despite the relatively benign goals of Trinity Lutheran’s playground-building — it opened the floodgates for taxpayer subsidizing of any “secular” part of a religious organization’s expenses that might be deemed to be for the common good. Secularist blogger Hemant Mehta at religion blog network Patheos gave the example of building a gym at the late Jerry Falwell’s Liberty University that was officially open to the public, but served to make the institution more attractive to potential students.
Plus, any precedent allowing state funds to flow to religious institutions could be used to legitimize discrimination on religious grounds.
In LGBTQ-advocacy group Lambda Legal’s amicus brief, for example, the organization argued that “There should be no possibility that a child and her same-sex parents are fenced Trinity, left to gaze at a publicly funded playground they may not enter, as its use is reserved solely for children from preferred religious tradition as a place to play and pray. The fence belongs instead precisely where Article I, § 7 erects it: separating Church from State.”
wise, the National Education Association argued that, “While there is a long and honorable history of taxpayer funds being used to support faith-based institutions in their provision of secular social services, any such funding must be accompanied, in AJC’s view, by adequate church-state safeguards. Among other things, this means that public grants or contracts should not be used to fund “pervasively religious organizations” whose religious mission is inextricably intertwined with the provision of services.”
The state also had some perhaps less-expected defenders. For example, the Baptist Joint Committee for Religious Freedom has come out against Trinity Lutheran, arguing that safeguards are necessary to protect religion from government interference.
In a statement to the press shortly after filing an amicus brief in defense of the state, Holly Hollman, the BJC’s general counsel, said, “Baptists and other religious dissenters in colonial America fought to ensure that the coercive power of the government was not used to force taxpayers to pay for churches.
The result has been a rich flowering of religion and religious institutions, funded by voluntary gifts and offerings.”
The longer-term implications of the Supreme Court’s decision are, as yet, unclear. But as the Supreme Court’s attention turns toward more religious-exemption cases — they’ve just agreed to hear the appeal of a Christian baker who refused to make a cake for a same-sex couple — it’s evident that the uneasy relationship between church and state in America won’t become any simpler anytime soon.
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Trinity Lutheran Pops Up in Latest Religion Case
In the veritable blizzard of this year’s end-of-term Supreme Court rulings – which is not over yet – is a significant First Amendment/religious liberty case: Espinoza v. Montana Department of Revenue, (full text). Handed down on Tuesday, June 30, 2020, the decision was a 5-4 win from the right-wing of the Court.
Simply put, “religious schools should have the same access to scholarships and funds as other private schools….” Chief Justice Roberts wrote the majority opinion that relied heavily on a June 2017 decision which he authored as well: Trinity Lutheran Church of Columbia v. Comer.
That case name may ring a bell for our long-time readers because we posted about the Trinity Lutheran case when it was issued, and then again four more times in the next year or so.
Trinity Lutheran was described at the time as “one of the most important rulings on religious rights in decades.
” Hailed by religious conservatives, this ruling horrified many on the other side of the debate including Harvard Law Professor Noah Feldman.
He wrote: “In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes. Somewhere, James Madison is shaking his head in disbelief.”
Free Exercise of Religion and Trinity Lutheran
“It all started several years ago on a playground at a church preschool in Columbia, Missouri,” we explained in Religious Nonprofits Score Big Constitutional Win (August 11, 2017).
Trinity Lutheran Church ran a preschool and daycare on its premises. In 2012, the state – Missouri – established a funded program “to help eligible nonprofits repair their old playground coverings with a pour-in-place rubber surface made from recycled tires.
The new material is squishy, sustainable, and much safer for kids.”
The Church applied for the grant. Although it scored high compared with other applicants for this limited pool of money, its application was rejected.
The agency in charge of the program, the Missouri Department of Natural Resources, “had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity.
” This policy was grounded in Article I, Section 7 of the Missouri Constitution that prohibits providing “financial assistance directly to a church.”
Trinity Lutheran sued and lost at both the federal trial and appellate levels. But the Supreme Court reversed – 7 to 2 – on the grounds that “the Free Exercise Clause of the First Amendment “…protects religious observers against unequal treatment,” concluding that a state “may not deny a church an otherwise available public benefit or payment because of its religious status.”
After Trinity Lutheran
There were already lower court cases in the pipeline involving First Amendment “free exercise” arguments, and these litigants (and other, newer ones) did not hesitate to hop on the Trinity Lutheran train with their own facts.
In Hurricanes, Houses of Worship, and FEMA Help (November 2, 2017), we wrote about three small Texas churches damaged in the devastating – Category 4 – Hurricane Harvey a few months earlier. In Harvest Family Church v. FEMA, they sued FEMA for disaster aid, challenging that agency’s longstanding ban on granting financial relief to religious organizations.
The churches argued that “this discriminatory policy stood in defiance of […Trinity Lutheran…] which they assert “protects the right of religious organizations to participate in widely available programs on equal footing with secular organizations.”
They just wanted a “fair shake,” reminding the trial court that, while houses of worship them are “denied access to grants,” other organizations “museums and zoos qualify for FEMA’s relief programs to help make basic structural repairs and begin rebuilding.
” To further drive home their point, the churches made sure the court was aware that “an octopus research center, a botanical garden, and community centers that provide sewing classes and stamp-collecting clubs” had easily obtained FEMA assistance grants.
Not long afterward, the lawsuit became moot because the Administration in Washington issued an executive order reversing the historical FEMA ban on aid to religious organizations in disaster situations.
And at about the same time, Attorney General Jeff Sessions released a memo with 20 principles that “should guide agencies in enforcing federal laws”: specifically, “except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law. Therefore, to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity, including employment, contracting and programming.”
This policy was issued in part relying on the Trinity Lutheran case. The lingering question has been whether Trinity Lutheran can support the Administration’s expansive accommodation of religious groups in all manner of government benefits.
In Religious Nonprofits in the Trinity Lutheran Era (April 12, 2018), we discussed two additional federal lawsuits that referenced that landmark June 2017 church/state decision.
In Illinois Bible Colleges Ass’n v. Anderson (August 2017), an association of bible colleges sued on behalf of its member institutions which wanted to issue degrees and credentials without any supervision or interference by state agencies imposing statutory standards.
However, Illinois has a number of statutes that apply to all post-secondary educational institutions that mandate that a higher education board approve certain categories of degrees.
” This plaintiff threw in “the entire spectrum of First Amendment challenges,” including Trinity Lutheran on the purported ground that the Supreme Court there bolstered its general argument that the credential-and- degree statute somehow involved an “underlying and unconstitutional anti-religious animus or bias.” That argument went nowhere; the plaintiff lost.
In Taylor v. Town of Cabot (October 2017), the Vermont Supreme Court issued a ruling that referenced Trinity Lutheran.
There, “certain municipal taxpayers sued to challenge a town’s use of federally derived but municipally managed funds to repair a historic church.
Vermont has a Compelled Support Clause in its Constitution – similar to Missouri’s – which protects against the state financial support of ‘worship.’”
In an ironic twist, the taxpayer-plaintiffs “won a battle but lost the war.” While they had “standing to request” a preliminary injunction, they were “ luck on ultimately winning the merits of the case.
” Most of the state funds in this particular situation were “to be used for maintenance and repairs to a building that serves not only as a place of worship but also as a place for nonsectarian community events and gatherings.” So, Vermont’s Compelled Support Clause didn’t apply at all.
Nor did Trinity Lutheran under these facts, according to the Vermont justices.
Espinoza Takes Center Stage
Many states in addition to Missouri have constitutional prohibitions on direct financial aid to religious organizations or for religious purposes. This week’s Espinoza decision involved a clause in the Montana constitution that “… restricts government aid to religious groups.
Three mothers in Kalispell, Montana, with children at Stillwater Christian School “wanted to participate in a state program enacted in 2015 ‘to provide parental and student choice in education.
’ It was financed by private contributions eligible for tax credits, and it provided scholarships to students in private schools.
In 2018, 94 percent of the scholarships went to students attending religious schools.”
In a bit of overkill, the Montana Supreme Court not only ruled against the parents but also shut “down the entire program for all schools, religious or not” the constitutional clause “that bars the use of government money for ‘any sectarian purpose or to aid any church, school, academy, seminary, college, university or other literary or scientific institution, controlled in whole or in part by any church, sect or denomination.’”
So the question that arrived in front of the U.S.
Supreme Court justices this term was the “opposite one: May states refuse to provide such aid if it is made available to other private schools?” (emph.
added) The American high court “has long held that states may choose to provide aid to religious schools along with other private schools.” Accordingly, the Montana justices were overruled.
Chief Justice John G. Roberts Jr.
, writing for the majority in Espinoza explained that this “provision of Montana’s Constitution ran afoul of the federal Constitution’s protection of the free exercise of religion by discriminating against religious people and schools.
” Citing Trinity Lutheran and other authorities, he added that, although a state “need not subsidize private education,…, once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The meaning and scope of Espinoza v. Montana Department of Revenue (and Trinity Lutheran) will be debated and litigated often in the coming months and years. Critics of Trinity Lutheran who were upset at that 2017 ruling are more concerned now. Justice Sotomayor, who strongly dissented back then, characterized the majority’s opinion in Espinoza as “perverse.
” Legal commentators worry particularly about certain troubling language in the concurring opinions of Justices Alito, Gorsuch, and – especially – Thomas in Espinoza, including what they describe as “… reiterating [Thomas’s] conviction that the First Amendment’s establishment clause was ‘ly’ designed to preserve states’ ability to establish official religions.” (emph. in orig.
It’s interesting to note that while cases this generally break down on partisan lines, the issue of government aid to religious organizations is not uniformly supported by any and all such groups across the United States.
For instance, in 2017 – when Trinity Lutheran was in the news – there was a divide of opinion on the Hurricane Harvey cases as to whether FEMA should or should not make religious institutions eligible for disaster aid.
Jewish groups, for example, took opposite sides: “Groups on the Jewish right, led by the Orthodox Union” … lobbied the government for a change in the exclusion of houses of worship.” They were opposed by the “… Jewish left” who aligned “with interfaith coalitions to keep taxpayer funds from supporting religious organizations.”