A legal world that promoted originalism would generate greater stability.
The recent case of Trinity Lutheran Church v. Comer raises the question of whether a church can be excluded from a competitive process for awarding state aid—in this case funding rubber floors on playgrounds to protect children when they fall.
The most powerful doctrinal argument for the Church is that a decision in its favor treats the Free Exercise Clause like other constitutional rights. A citizen (or other bearer of rights) cannot be forced to give up something provided by the state because he is exercising a constitutional right, absent a compelling state interest. As Justice Elena Kagan said at oral argument, “it is as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled that funding, to — to that particular funding, whether or not they exercise a constitutional right.”
Justice Kagan was describing the so-called unconstitutional conditions doctrine and she was correct that it is regularly applied across the range of constitutional rights. It is the pull of this doctrine and the felt need to make its application consistent that it is likely to move a very large majority of the Court, including Justices Kagan and Breyer, to rule in favor of the Church.
The arguments made in the oral argument against the doctrine of unconstitutional condition in this case are weak. One was that the program at issue here was competitive rather than universal. But the logic of unconstitutional conditions should apply to competitive programs: citizens cannot be made to give up the capacity to compete at the price of exercising their constitutional rights, because the right to compete too is a valuable benefit from government.
Another argument was one of appearances. It was feared that some people might rush to a conclusion that religious favoritism is at work if one religious institution won the competition rather than another, even if the decision were made on the basis of secular criteria. But I have previously suggested that appearance is a weak reason to erode constitutional rights—indeed it is a dangerously illimitable principle for the destruction of liberty. Willful ignorance of the facts often gives rise to an unjustified sense of impropriety.
Nor it is a problem that the aid takes the form of direct payments to the Church. Many payments subject to unconstitutional conditions have been direct. And, as was pointed out at oral argument, it would be obviously unconstitutional to withhold police and fire protection from churches, despite the fact that these services also cost money. Their indirect nature may be less visible to people, but the visibility of aid is just a variation on the appearance argument rejected above.
Justice Sotomayor seemed oblivious to the relevance of the unconstitutional conditions. At the argument she challenged the Church’s attorney by saying, “This church is not going to close its religious practices or its doors because its playground doesn’t have these tires. “ But most secular organizations would not close their doors if they were denied grants because of their speech. Nevertheless, the doctrine of unconstitutional conditions would preclude discrimination in the provisions of government benefits on the basis of the exercise of a constitutional right. Perhaps this is an another example of Justice Sotomayor’s jurisprudence of selective empathy.