Trinity Lutheran Church and Unconstitutional Conditions

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.

Reader Discussion

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on April 28, 2017 at 10:12:05 am

What McGinnis said.

But in Locke v. Davey, 540 U.S. 712 (2004), the Supreme Court upheld a Washington State scholarship fund that was limited by the state’s Blaine Amendment to finance any education except a “degree in devotional theology.” Scalia found that this policy forthrightly discriminated on the basis of religion—that generally available benefits are part of the “baseline against which burdens on religion are measured”—and that the state had failed to articulate a cognizable rationale for the discrimination.

But Scalia wrote in dissent. The majority found that Washington was justified in excluding funding for the religious degree because, “[s]ince the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion.” In short, the heckler’s veto. The Court found that fear that government was engaged in wrongful discrimination on the basis of religion—even unjustified fear—should suffice to justify discrimination on the basis of religion. Government's need to be beyond reproach justifies reproachful discrimination. This is bone-headed.

But here’s a trickier question: What is religion? I favor an expansive definition: Pretty much any expression of autonomy. Otherwise, we run flatly into the problem of discriminating against regions on the basis of our definition of religion. So if government wants to place conditions on people’s access to government, then government needs to have a compelling rationale—and mere fear of “undue entanglements” should not suffice.

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on April 28, 2017 at 11:24:36 am

On its face, the Constitution leaves the matter of religion to the states and the whole line of church versus the state jurisprudence concocted by the Supreme Court is plainly extra-constitutional.

When the Constitution was ratified each sovereign state had the authority to establish or disestablish a state church and to bar certain sects and tolerate others. After ratification, many states chose not to establish a church at all and some states, like Missouri, chose to forbid any and all state aid to any church.

To find for Trinity Lutheran Church of Columbia is to endorse a clear usurpation of power by the Supreme Court.

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on April 28, 2017 at 15:38:26 pm

What nobody.really said!

And certainly not what The Wise Latina said.

Let us see if The Wise One manages to maintain this principle of triviality (tire swings) when it comes to denial of Federal Funds to Municipalities that refuse to enforce immigration laws. Surely, the municipalities will not shut down if denied these funds.

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