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It was a warm June morning as the Justices, in heavy robes, took their usual seats in the Supreme Court to decide on Trinity Lutheran Church v. Comer. The case called into question whether or not the state of Missouri could exclude religious organizations from receiving a government grant for repaving its playground with recycled tires.
In the time between agreeing to hear the case and actually hearing the case, Justice Scalia died, Trump won the election, and the state of Missouri publicly announced that it had changed its law and would no longer exclude religious organizations from receiving government funding. With the law in question erased from the books, the court would normally find the case to be moot and refuse to hear it.
Yet the majority of the justices were willing to proceed with the decision. So we found ourselves biting our nails in anticipation as the future of church/state separation hinged on a nearly-moot case over recycled rubber playground material. In times like these, we can’t help but ask ourselves, how in the hell did we get here?
Preamble
We begin in 1791. The country is still young and is just now adopting a set of ten, shiny new amendments meant to polish up the nation’s brand new constitution. The first amendment states, in part, “Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof.”
The fundamental goal here was to keep church and state at a respectable distance. But what exactly does that look like in a nation where both church and state must coexist and occasionally cross paths? Our Supreme Court would spend the next two centuries trying to figure that out.
The Formative Years & the Mormon Problem
The year is 1845, about 50 years after the Supreme Court was first assembled. It was a time when the Supreme Court was still unsure of its exact role because it hadn’t really been defined yet. Meanwhile, states were busy making their own constitutions and laws.
One of those laws was a municipal ordinance from New Orleans which banned Catholic priests from performing funeral rites over the dead. Instead, all bodies had to be brought to a local, protestant “Obituary Chapel” and all funeral proceedings would be handled there. If Catholics wanted to have Catholic funerals, they would have to do it somewhere else, without the body of the deceased. Similar laws existed in other states.
In 1842, New Orleans fined Father Permoli for disobeying the law by allowing funerals (body and all) in his church. He refused to pay the fine because he believed that this law expressly discriminated against Catholics — a belief he had held ever since reading the rather unambiguous text of the ordinance which stated, “It shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse, under the penalty of a fine of fifty dollars.”
Despite the existence of the First Amendment and despite the very clear attempt to prohibit the free exercise of Catholicism, the Supreme Court determined that this particular case did not fall within its jurisdiction.
Why? Because, the Justices argued, the amendment states that congress shall make no laws. It says nothing about what states may or may not do. In other words, the federal constitution has no jurisdiction in a state — a ruling which sounds incomprehensible to the ears of a 21st century American who has been raised with a red-blooded belief in the supreme, inviolable authority of the United States Constitution.
Yet this authority was clearly something that had to be cultivated over the centuries. In fact, the Court’s jurisdiction over state laws would not be solidified until the 1940s. Meanwhile, oral arguments throughout the 19th century and into the early 20th century would continue to skirt around the federal constitution, typically using it only to prove that the case did, indeed, fall within the jurisdiction of the Supreme Court.
For legal precedent, the Court would turn to British law rather than its own Constitution. For argument, they turned to an ambiguously defined “natural law,” classic literature, and, in some cases, even biblical law (particularly the 10 commandments).
In the 1878 case of Reynolds v. United States, for example, the state successfully found precedent for criminalizing polygamy on the grounds that it had just “always been odious.” Similar reasoning was used in a slate of cases which ultimately had the effect of dissolving the Mormon Church and seizing the territory of Utah from them (Mormon Church v. United States). Despite the questionable logic for finding polygamy to be odious enough to warrant increasingly extreme state intervention, the precedent set by Reynolds was clear:
“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices,” – Chief Justice Waite, in delivering the opinion of the court on this case.
Thus, throughout the 19th century and into the early 20th century, the Supreme Court interpreted that portion of the first amendment as granting the Court a very limited scope of power in which it could only interfere with religion when it was doing something particularly “odious” (i.e. – when it was Mormon). And when it came to state laws, they avoided saying much at all.
The Court Takes Shape, Solves the Jehovah’s Witness Problem
By the ‘30s and ‘40s, the Supreme Court has started to become more assured of itself. By now, they are willing to make stronger assertions regarding state legislation and set precedents that would endure and be respected as law. With the Mormons now more or less subdued, the new task at hand was figuring out what to do with all these Jehovah’s Witnesses.
A series of about a dozen cases throughout these two decades began to define when, where, and how a Jehovah’s Witness was allowed to solicit and distribute the word of our Lord and Savior. And for the most part, the Court ruled for the Jehovah’s Witnesses.
The general reasoning of the Court across all of these cases was that because such solicitation was required as part of their religion and because this practice, while a little annoying, was not odious in the same way that polygamy was, it could not be fully prohibited by the government. It could, indeed, be reasonably regulated — including a law preventing them from using child labor to solicit and distribute religious material (Prince v. Massachusetts) — but never banned outright.
Through all of these cases, religious organizations and individuals start to be granted a special status. While they had long been exempt from certain taxes by virtue of being grouped under the larger category of charitable nonprofit organizations, they were now also being given special status in the marketplace.
While a plucky young entrepreneur seeking to live the American Dream would need a special permit to solicit and sell his wares on the streets, a Jehovah’s Witness was free to do his solicitation without one.
While a person engaged in secular business would be charged with fraud for making blatantly fraudulent claims in order to get money, a person making fraudulent religious claims for the same purpose could successfully worm his way out on the reasoning that the Court has no authority to judge either the truth or the sincerity of his claims (United States v. Ballard).
This special status, however, was still rather limited and not yet fully formed. What is more significant about this era is that in providing its reasoning for these special privileges, the Court would often cite only the second half — “or prohibiting the free exercise thereof” — of this portion of the first amendment.
In this, we find the subtle beginnings of a trend that would ultimately cleave the dependent clauses in two so that two categories of laws emerge, those that are “respecting an establishment of religion” and those that are “prohibiting the free exercise thereof.”
The Supreme Court Attempts to Reign in Cold War Paranoia
Throughout the ‘50s and ‘60s, the states start to get really heavy-handed in their policing of religion (and everything else). In a flurry of McCarthyism, nuclear threats, and the Red Scare, religious organizations were not exempt from the accusatory glares of the state.
The main task of the Court switched from figuring out how and where to set the boundaries on individual and group free exercise to figuring out how to stop the government’s current habit of interfering in religious organizations and implementing laws clearly intended to establish the United States as a Christian nation.
In the 1952 case Kedroff v. St. Nicholas Cathedral, New York attempted to fire and replace the entire clergy in charge of the cathedral because, the state argued, the church might be run by atheists or subversives. The allegation being that the clergy were loyal to their superiors in Moscow, Moscow being located in a communist country, and communists being invariably both atheists and subversives.
The Supreme Court ruled in favor of the church but the state would return just eight years later attempting to evict the same Russian Orthodox Church from the same St. Nicholas Cathedral on the very same grounds (Kreshik v. St Nicholas Cathedral). The Court, again, told New York that being Russian was not a compelling reason to prohibit the free exercise of religion, citing as precedent the case from eight years ago in which they told them the exact same thing.
Alongside this, there was a steady undercurrent of cases dealing with the presence of religion in government-run institutions. States everywhere seemed intent on building a strong sense of good Christian faith with which to combat the atheists and subversives who lurked in our streets and preyed on our young.
Public schools were mandating morning prayers and bible readings (Engel v. Vitale, Abington School District v. Schempp). Elected officials were being required to take a religious test before they could hold public office (Torcaso v. Watkins). Science teachers were teaching Creationism (Epperson v. Arkansas, Edwards v. Aguillard).
The Supreme Court shot down all of these and, in so doing, would often single out the amendment’s first half — “Congress shall make no law respecting an establishment of religion” — in its rulings. The argument was that such excessive interference from the state constituted a form of establishing religion.
The Clauses become “Playful” Competitors
With the religious clauses now accepted as independent actors, it doesn’t take long for the Court to start treating them as competitors. In the 1970 case Walz v. Tax Commission of New York, the plaintiff argued that the long-held practice of granting religious organizations a tax-exempt status was a law respecting an establishment of religion because this exemption indirectly forced taxpayers to pay for religious organizations.
The respondents countered this argument by saying that it was actually a means of protecting the free exercise of religion. And thus we have reached one of the first cases in which the clauses were not only separated but placed on opposing sides of an argument.
In giving the opinion of the court, Chief Justice Burger lamented, “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”
In affirming the practice of tax exemption, the Chief Justice argued that the best course of action was to determine whether a particular law, even if it leaned a bit toward one extreme or the other, was at least as close to the neutral middle road as possible.
This came to be known as “play in the joints” and would become so entrenched that the clauses would never be allowed to collaborate again.
The Clauses Go Through a Messy Divorce
Throughout the following 40 years, the Supreme Court would apply “play in the joints” reasoning to a series of cases which could be drawn into two broad categories:
The first were cases dealing with when, how, where, and why the government might sometimes give money or support to a religious organization without it being ruled an unconstitutional establishment of religion.
The second were cases dealing with when, how, where, and why a religious organization might be exempt from certain laws, taxes, and criteria for the sake of protecting the free exercise of their religion.
The confusion resulting from this muddied the waters. But for anyone willing to recreate one of those classic scenes from a mystery thriller in which a half-mad detective covers their wall in a collage of documents covered in red lines, a definite trend appears:
Whether trying to steer away from the establishment clause or away from the free exercise clause, the Supreme Court rulings tended to have the effect of weakening the support system in place for underprivileged people.
In other words, when the case dealt with a vulnerable population — impoverished, disabled, or a member of a traditionally discriminated group — the Court would often rule in a way that chipped away at state-protected civil rights and social services, whether that meant steering toward an Establishment clause violation or toward a Free Exercise clause violation.
For example, in a series of cases, the Court repeatedly ruled that religious organizations were exempt from paying unemployment insurance. They also ruled that churches were allowed to discriminate against their own members and employees based on religion, gender, disability, or sexual orientation. Thereby determining that labor rights violations and discrimination are fine as long as you say God made you do it.
Meanwhile, when the government wanted to allow public schools to provide teachers or textbooks (on secular subjects) to private school children who otherwise had no access to them, the Court ruled that this veered to close to violating the establishment clause. Thereby depriving children of secular educational material simply because they had been placed by their parents in a church-run school.
Trinity Lutheran v. Comer
This brings us back to Trinity Lutheran v. Comer in 2017. In the case decided by the court, Missouri argued that if they give money to a church for repaving its playground, they will violate the establishment clause. Meanwhile, the church argued that if the government does not give them money for the playground, the state will violate the free exercise clause.
Once again, the clauses have been forced into battle against each other and the Supreme Court was faced with the decision about which half of the constitution’s Religion amendment will be ruled the constitutional half.
The majority held that denying Trinity Lutheran the grant did, indeed, infringe on free exercise and that any concerns regarding establishment were not substantial enough to justify prohibiting free exercise in this instance. Using play in the joints, they determined the most neutral path was one of allowing the church to apply for government funding.
The idea was that Trinity Lutheran was denied the grant on the basis of their status as a religious organization, not on the basis of what they proposed to do with the money. In the opinion of the Court, what they proposed to do (repave a playground) was not an explicitly religious action so what was being penalized was the organization’s identity as a church-owned daycare.
In the dissenting opinion, Justice Sotomayor along with Justice Ginsburg, countered this logic by pointing out that the daycare explicitly stated in the grant application that they are concerned with the “spiritual development” of the children. Even though repaving a playground is not a religious act in the same way as praying or painting “God hates fags” on a cardboard sign, the state is still underwriting the Lutheran religion because that playground is as integral to the Lutheran-doctrine teaching daycare as walls are to a Sunday School or pews are to a Church.
This kind of entanglement, argues our two dissenters, is more than enough to warrant favoring the establishment clause over the free exercise clause.
But no, says the majority, because this denial of the grant is an act of coercion by the state. It places an undue penalty on the free exercise of religion by telling Trinity Lutheran that they can either accept the grant or be Lutheran. They cannot do both.
The majority opinion was still careful to point out that the Court doesn’t always choose the free exercise clause over the establishment clause; citing as example, two cases where Native Americans were denied the protection of the free exercise clause when that free exercise would have prevented developers from tearing down forests and paving over sacred land or would have allowed a pair of Native Americans to collect unemployment insurance after having used peyote in a religious ceremony.
In a third precedent, free exercise protection was granted to a church that fired one of their teachers after she took disability leave. One lesson to be derived from Trinity Lutheran v Comer and the cases cited as precedent is that, if you wish to qualify for protection under the free exercise clause, you had better be some denomination of Christian.
Why “Play in the Joints” Undermines the Constitution
Another larger lesson to be taken from this is that the clauses, when acting separately, tend to create exactly the type of church/state relationship that the founders were trying to avoid (one in which religious law undermines civil protections and responsibilities). When free exercise is protected by the Court, it is all too often with a blatant disregard for any violations of the establishment clause; and the same holds true the other way around.
This kind of “play in the joints” positions church and state as enemies in an ongoing battle for power. But this was never the intent. These clauses were written at a time when Christianity was the de facto belief system and what was at issue were the particular sects of Christianity who would sometimes butt heads with one another. God was a given so the founders didn’t see religious organizations as an inherent threat to society.
The threat was the conflict between them and the risk that one particular religious organization would take control of the government or that the government would overexert itself in the regulation of particular religious beliefs.
Though the landscape today is much more pluralistic (including dozens of belief systems with little or no connection to Christianity), the fundamental issue remains the same. Different belief systems butt heads while the government attempts to serve all citizens in a way that doesn’t encroach on religious beliefs and doesn’t privilege any one religion over the others.
Preventing the establishment of religion makes room for a plurality of beliefs so that religious belief is a choice left to the individual. Protecting the free exercise of those beliefs creates a harmony in which that plurality of religions can coexist side-by-side without any given one feeling threatened.
In Trinity Lutheran v. Comer, the clauses working together would have decided in favor of Comer — the state’s rejection of Trinity Lutheran’s application was within the scope of both religion clauses on the grounds that the organization’s application included an express statement of religious intent so secular government money would be underwriting a daycare with an overtly Lutheran curriculum. By entangling itself with the Lutheran church, the state indirectly threatens the free exercise of other religious organizations which might have benefited from a similar government grant.
If the grant was not a limited one, available only to the 14 most qualified applicants, this entanglement might have been evaded by the fact that any religious organization was equally capable of receiving the refund. The state’s role would be a clearly secular one of promoting environmentally friendly renovations, regardless of religious affiliation.
Because funds for the program were limited, Missouri was unable to offer this grant to all applicants. Under these circumstances, the state might have avoided excessive entanglement while still rewarding the church’s exceptional contribution to the community (the same contributions which ranked it among the top five best candidates for the fund) by attaching certain conditions to the grant.
For example, the grant could be given on the condition that no Lutheran curriculum would be taught on the playground; that the daycare would continue to admit non-member children to the program; and that it would continue to allow non-member children of the community to use the playground after hours.
With such conditions, the state would avoid both excessive entanglement (violating the establishment clause) and excessive coercion (violating the free exercise clause). And they would do so not by finding some flimsy neutral road that avoids offending either clause too much but by finding a path that preserves the integrity of both in equal measure.