(Bloomberg View) -- Supreme Court Justice Neil Gorsuch waited until almost the end of Wednesday’s oral argument in the major church-state case of Trinity Lutheran Church v. Comer to make his voice heard. But his comments seemed to foreshadow his vote, which he will likely cast in favor of the church that wants to use a state grant to resurface its playground despite a Missouri constitutional provision banning state aid to religious organizations.
Gorsuch’s vote, however, may matter less than that of his old boss, Justice Anthony Kennedy, who seemed not to have made up his mind. That could be a good thing. Kennedy has in the past taken the view that the First Amendment’s establishment clause is only violated when the government has engaged in coercive behavior. If he extends that view to the free exercise clause, and similarly requires coercion here, he might conclude that the Missouri Constitution doesn’t violate the U.S. Constitution -- which would be the right outcome.
There are a lot of moving parts in this case, so I’ll try to keep it simple. The core issue is whether it’s a violation of the free exercise of religion for the state to refuse to give its playground resurfacing grant to a religious institution.
If the court followed either the original meaning of the Constitution’s religion clauses or existing precedent, the answer would be a resounding no. The Founding Fathers strongly believed that direct state funding of religion was a violation of the liberty of conscience for people who paid the taxes that ended up in the hands of religious organizations. Conversely, they would have never imagined that religious freedom was violated by a law that denied funding to churches or other religious organizations.
And the Supreme Court has never held that the free exercise of religion entitles a religious organization to government funding. The last time it was asked to reach this conclusion, in the 2004 case of Locke v. Davey, it refused, in an opinion by then Chief Justice William Rehnquist.
What’s happened since is a slow transformation of the free exercise clause from a shield to protect religious belief and worship into a sword to make government treat religious organizations the same as nonreligious ones.
The key move here has been to treat the free exercise clause as though it’s a kind of equal protection clause for religious people and their organizations. It was liberals who started doing this back in the 1960s. Now it’s conservatives who are pushing the legal envelope.
The logical conclusion of this development would be to eliminate the establishment clause altogether. After all, refusing to fund religious organizations treats them differently from nonreligious organizations. If the state were completely egalitarian toward religion, it wouldn’t ban establishment at all.
Gorsuch’s comments show just how far the equality argument has gone. The lawyer for the state of Missouri had said it was worse for the state to fund religious organizations in a competitive grant process than in an open one where every organization got aid. Gorsuch challenged him, asking, “How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs?”
What the lawyer should have said is that the state isn’t discriminating against religious organizations at all. It’s following a principle of no direct aid.
According to the Supreme Court, there’s a difference between direct aid to churches, which in the past has often been understood to violate the establishment clause, and indirect assistance that comes in the form of police and fire protection or aid distributed as the result of private market choices, such as school vouchers.
But there’s another way to get this case right: to notice, as some of the justices seemed to do, that there’s no burden on the religious exercise of the church when it can’t get a direct government grant for its playground. The church can worship all it likes. It can run its playground however it likes. No one is coercing anyone not to engage in religious action.
Put simply, the free exercise clause isn’t about discrimination. That’s what we have the equal protection clause for. And there’s no equal protection violation here, because there’s a rational reason for not directly funding religious organizations: protecting the liberty of conscience of taxpayers and keeping religion and government separate.
Justice Elena Kagan seemed interested in responding to this concern by saying that there’s an important constitutional principle that says the government can’t condition the receipt of a good on non-exercise of a constitutional rights, such as the free exercise of religion.
But this principle can’t be applied to funding of religion -- because the establishment clause itself is such a condition. It says the government can directly support any beliefs or practices it wants -- except religion.
Justice Sonia Sotomayor was right when she said that “no one is asking the church to change its beliefs.”
If Kennedy wants to follow the original meaning of the free exercise clause, he’ll notice that there’s no coercion of any kind in this case. No one is being stopped from doing anything on the basis of religion.
That means the free exercise of religion isn’t being violated in a funding case like this one.
Careful attention to this proposition will save the free exercise clause from being turned into an equal protection clause for religion. And that can help preserve the separation of church and state.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.
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