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Tuesday, August 16, 2016

Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations

As I argue in a book chapter, I am a fan of decentralizing to subnational governments disputes over what I call “RADDs” – that is, “reasonable and deep disagreements.” A RADD is potent and divisive cocktail created by mixing two explosive ingredients – first, a reasonable dispute over a baseline of entitlement and, second, an intense conviction that the dispute touches on one’s identity as a member of an ethnocultural group. I believe that it is prudent to decentralize fights over RADDs because the absence of any common baselines – that is, the absence of a social and legal consensus defining who owns what -- make RADDs simultaneously irresolvable and viciously divisive. Because each side believes that it is playing defense against an invading enemy intent on cultural hegemony, battles over RADDs are treated by contestants as existential threats, inspiring an endless culture war in which the contestants generate acrimony that poisons ordinary politics. To defuse such battles, one can lower the stakes by delegating the resolution of RADDs to subnational governments in a way that allows each side’s reasonable view to prevail in some subnational jurisdictions. Federalism is the Westphalian solution to our Thirty Years (and counting) Culture Wars.

If you share my taste for defusing RADDs with a decentralizing fix, then there is no more important precedent than Locke v. Davey, the SCOTUS’s 2004 precedent that permitted but did not require Washington State to exclude a student seeking a devotional theology degree from receiving funding from the State’s otherwise-inclusive scholarship aid program. Locke is the federalism complement to Zelman v. Simmons-Harris, in which the Court permitted but did not require parents to use otherwise-available state-funded vouchers at religious schools. Both cases expand the scope of states’ power to define what one might call “secular accommodations” – that is, the accommodation of one’s desire not to be forced to contribute one’s tax dollars to the support of someone else’s religion. Zelman allows states to dispense with such accommodations; Locke allows states to provide such accommodations. The Court’s allowing both such approaches could be understood as a meta-accommodation that allows different jurisdictions’ rival views about secular accommodations to co-exist. I suggest that such a meta-accommodation through federalism best shows equal concern and respect for the RADD over whether or not a religious school should be prohibited from receiving, or entitled to receive, state aid. There are equally reasonable legal and political traditions in favor of both positions. Why not let each rule the roost somewhere?

Trinity Lutheran Church v. Pauley, a Free Exercise case to be argued before SCOTUS in the upcoming term, threatens to undo Locke. (With a 4-4 Court, the threat is admittedly weak). At issue in Trinity is Missouri’s state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran Church runs a school that wants assistance from an otherwise secular and neutral state funding program to re-surface its playground with ground-up tires. That state constitutional limit has been held to bar the aid, singling out a religious institution for a limit on state aid from which secular institutions are free.

Rick Garnett, my co-blogger and friend, would have the Court eat away at Locke by enforcing a nationally uniform rule of neutrality barring Missouri from discriminating against religious institutions in paving playgrounds with tires unless such discrimination is required by the Establishment clause. After the jump, I will argue why I think that this bid to resolve the RADDs with a nationally uniform rule cannot end well for either side.

For religiously minded persons seeking equal access to government benefits, Rick’s neutrality-based approach will seem like a simple and satisfying way to define Free Exercise rights -- until one applies it to religious organizations’ special exemptions from governmental burdens. If the neutrality approach were adopted across the board, then religious organizations would lose far more than they would gain. Of course, there are plausible arguments that allowing special treatment in favor of religious actions and organizations is more firmly ensconced in our constitutional text and traditions than allowing special burdens on religion. But this sort of fine-grained doctrinal argument tends to be most convincing to those already convinced: It cannot be the basis for a social truce between the friends and enemies of faith. Against precedents favoring special religious accommodations, one can, after all, invoke Estate of Thornton v Calder and Texas Monthly v. Bullock decrying them. Against precedents requiring religious organizations to receive equal access to state-funded benefits, there are all of those Lemon-Era precedents requiring exactly the opposite.

One can always argue, as does Rick, that the old Lemon line “reflected a way of thinking about aid to religious schools that [SCOTUS has], for good reasons, abandoned” in favor of an emphasis on “neutrality” rather than “strict separation.” But those reasons often seem good only to the religious side of the culture war. The aspiring Lemonite might say that he who lives by overruling former lines of precedent dies by the same sword: Why cannot a new Clinton-appointed Court abandon Zelman just as easily as the Rehnquist Court has semi-tossed Lemon? The battle over the “correct” theory of accommodations is like a judicial Game of Thrones in which one dynasty of doctrine supplants another only to be supplanted in turn as the Court’s membership shifts. Why not instead call a truce to this doctrinal churn, acknowledging that both sides have a position within the pale of respectability for which each state ought to be able to opt?

One might respond that Missouri’s discrimination against religious schools is a product of specifically anti-Catholic prejudice outside that respectable pale. As Rick notes, Missouri’s constitutional ban has its 19th century origins in “pervasive anti-Catholicism and nativism,” hardly an ideology that fits within today’s standards of religious equality. True enough, but the question that SCOTUS will eventually have to answer is whether Locke would save a carve-out that was (re-)enacted with a new and more acceptable purpose. What should be done about New York City’s “Regulation I.Q.,” for instance, banning services of worship in public school buildings after hours? Invoking long-bygone anti-Catholic prejudice does not answer that question.

I am inclined to let Senator James G. Blaine and his legal progeny rest in peace and allow states operating with currently acceptable non-endorsement motivations to enjoy broad latitude to carve out broad exemptions for religious institutions from both the benefits and burdens of their laws. The advantage of such a decentralizing solution is that each reasonable side of an unresolvable debate gets some share of policy-making power. No one’s rights are offended by Missouri’s carve-out in Trinity, if “rights” are defined by national consensus about religious equality, because no such consensus condemns the modest (albeit “discriminatory”) burden of being deprived of a new playground surface – especially given that Trinity Lutheran gets in return the much more valuable carve-outs from Missouri’s regulatory and tax burdens.

Posted by Rick Hills on August 16, 2016 at 04:01 AM | Permalink


Thanks for the response and I think Sen. Douglas did have his moments.

My concern was to toss in that caveat about the full picture of Douglas' position and how it would have affected slavery.

Posted by: Joe | Aug 17, 2016 12:10:32 PM

Absolutely correct, Joe. Douglas was a virulent racist: His denunciations of the "Black Republicans" during the Jonsboro Debates were trademark Southern Illinois ("Little Egypt") rhetoric. So... a despicable person. And yet oddly heroic in some ways, with his resistance to Lecompton and the BUchanan Administration and his interruption of his doomed presidential campaign to go South to argue against secession in territory where he could easily have been tarred and feathered. (He died there of exhaustion, his mission a failure).

Popular sovereignty was invented not by Douglas but by Lewis Cass as a way to finesse the awkward position of "Doughfaces" -- Northern pro-Southern Democrats, often Midwesterners, Pennsylvanians, and one New Hampsire-ite. Of course, such a device cannot be used to finesse matters of fundamental importance like equal citizenship. So the theory is fundamentally misapplied to slavery. But I suppose that, even here, it might be defended as a modus viviendi if any such modus could ever be appropriate.

All of which is to say that I do not see any necessary relationship between the principle of popular sovereignty and racism as such. Indeed, PS was certainly less pro-slavery than the views of Buchanan and the Soutthern fireaters.

Posted by: Rick Hills | Aug 17, 2016 11:58:36 AM

"Stephen Douglas and his theory of popular sovereignty"

Caveat here. Douglas did not just support popular sovereignty but bluntly rejected racial equality. Lincoln did not push for the modern level of equality, but did support a basic floor there. Don Fehrenbacher, e.g., in his final book showed how a pro-slavery federal government was a choice and where that led. The final chapter (finished after his death) offered various examples of an alternative to that approach.

The popular sovereignty approach in the territories arguably could have been supported without this baggage but probably would have been tricky.

Posted by: Joe | Aug 17, 2016 11:35:32 AM

These are good responses, Rick, thanks for taking the time.

2. Makes sense. I'm probably a good bit more hesitant about a regime of formal neutrality than you are, but maybe the good spirit of the American people would protect against the worst abuses.

3. Got it. The post-Boerne RFRA, the Title VII exemption, the ERISA exemption, etc.--there are many good examples of Congress limiting exemptions to federal laws and letting states regulate. I just wasn't thinking about the Rosenburger-Locke line of cases that way.

4. I ask what I thought was a clever, pithy question, and I get a devastating rejoinder on the merits--totally deserved. Thanks. I knew bits of that history, but not the whole thing. And now I have to read your Fordham piece cover to cover.

Thanks for the kind words about my scholarship. I'm looking forward to reading your new book chapter.

Posted by: Chris Lund | Aug 17, 2016 10:37:21 AM

Hi everyone: Thanks for all of your very thoughtful comments. I am responding very late in the game because I am now in Shanghai, China, where there is a 12-hour time difference.

1. First, Hash and others ask whether there is any limit to the sorts of benefits that governments can selectively deny to churches?

I would say that there are several such limits. As Marty notes, the outer limits of state power could be defined by the old Everson-Allen line of cases purported to draw a distinction between "general" benefits that must be afforded to everyone and "special" benefits that can be selectively denied to avoid "endorsement" or similar "Establishment-like" problem. I do not endorse that line as a terribly convincing or coherent line: It tended to make silly distinctions between religious and non-religious goods (buses and school lunches, okay, textbooks, not) in sheer defiance of the obvious fact that all money is green. There is also that old O'Connor "no endorsement" test. I would suggest that, if a state limit on aid passed any of these tests, then it should be accepted as within the range of reasonable disagreement. A line does not have to be intellectually coherent to be constitutionally acceptable: It need only be sufficiently protective of churches' equality that a reasonable person would not infer it was intended to be a hostile attack on religion as opposed to a good-faith effort at non-endorsement.

2. Chris Lund notes that that "it's pretty common in the field to defend exemptions and equal funding," citing Doug Laycock.

Yes, sure, there are many different baselines at play out there -- for instance, the Eisgruber-Sager "equal liberty" test, the "Laycock "substantive neutrality" test, the good old Kurland "formal neutrality" test (of which, I think, Mark Tushnet might be the last living advocate), and so on and so forth. Each such test defines a sort of baseline for "neutrality" of one sort or another.

I am catholic (small "c") in embracing them all: Federalism allows such a latitudinarian approach. In other words, each and every one of these tests is a reasonable position, falling within a broad zone of reasonable disagreement within which states ought to be able to stake out a position. Some of these positions have been nixed by the Court in at least some of their applications: Hosanna-Tabor, for instance, nixes formal neutrality with respect to ministerial exemptions from formally neutral laws. In the name of stare decisis, one is stuck with such nationalization of religious liberties, but, to put my own cards on the table, I would give broader latitude to states to define religious liberty either in favor or against church autonomy, constrained by a loose ban on purposeful, "individious" anti-clerical discrimination. "Benign" accommodation and formal neutrality would be both alike be permitted -- but not required -- under this approach.

3. Chris Lund also asks why my position has anything to do with federalism, noting that, wherever the line is drawn, the feds and states will be constrained in the same way.

The federalism comes in to the extent that the states are allowed to do stuff that the feds are forbidden to do. In my view, the Court has replaced selective incorporation of the Harlan II variety with a two-tier system of rights advanced through statutory interpretation. Federal exemptions from federal laws like Title VII or federal statutes applicable only to federal entities like RFRA and the Wagner Act are construed to be extra-protective of religious autonomy and equality; states are left free to trim back on these liberties by imposing regulations on private firms that federal law does not require.

The last part of my book chapter to which I linked discusses how the Court has subjected the feds to a shorter leash using statutes like RFRA and the Wagner Act. I also discussed the federalist implications of Hobby Lobby and Boerne here: http://prawfsblawg.blogs.com/prawfsblawg/2014/07/two-kinds-of-federalism-in-hobby-lobby-does-state-corporate-law-define-federal-free-exercise-rights.html But this is plainly a subject for a second post on which I would like very much to have your thoughts, Chris, given your terrific work on the ministerial exception, Gonzales, and general applicability, among other "Religion Clauses" topics.

4. A small correction: "cuius regio eius religio" has nothing to do with the Peace of Westphalia. That slogan described the Treaty of Augsburg, which, of course, collapsed after 1618 with the Thirty Years' War (if not earlier). The 1648 Treaty of Osnabruck, the most important part of the Westphalian Peace, qualified "CRER" with various limits on local rulers including the "Ordinary Year," protection for merchants' worship, and the protection for all worship of the three protected denominations sans bells and spires. (I discuss this in my Fordham piece from a decade ago).

This pedantic qualification actually has an important substantive implication: Federalism pure and simple just does not work with RADDs. No nation could survive allowing (for instance) lynch law in Alabama and racial equality in Massachusetts. There has to be outer limits to the harm that a subnational jurisdiction can inflict on its minorities, or else citizens from one jurisdiction, revolted by abuses elsewhere in the republic will simply invade the offending state. (The Donauwörth riots against Catholics and subsequent invasion of that city by Catholic Bavaria was one of the triggering events for the Thirty Years' War).

4. Michael asks: "isn't your argument for decentralizing disputes over RADDS the same one used by the slave states prior to the civil war?"

No, I do not think so. The South had, by the early 1950s, embraced Calhoun's position that the federal government must actively protect slavery in federal territory like Washington D.C. and the western territories. This call for national protection for slavery caused the "non-extensionists" led by Lincoln to accuse the South of wanting to nationalize slavery. (As Lincoln stated in his "House Divided speech of 1858, "[w]e shall lie down pleasantly dreaming that the people of Missouri. are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State").

If my position has a defender and defense in the antebellum period, it would be Stephen Douglas and his theory of popular sovereignty. I think that there is much to be said for the much-maligned Douglas's position, and I confess that we are intellectual cousins. Whether Douglas's approach would have warded off the Civil War and yet caused slavery to wither away (because the arid western territories generally would have rejected it) is a great "what if" of history. As his compromise was rejected by South and North alike, we will never know.

5. Asher wonders whether I am exaggerating the depth of disagreement here, asking "[w]ho are the ardent separationists who believe that, in denying religious schools playground funding, they're playing defense against an invading cultural enemy bent on hegemony?" (BTW I am a big fan of his blog, "The Narrowest Grounds").

Here's my hypothesis: Lurking behind the re-hashing of these old battles over the comatose body of Lemon are deeper worries by secularists that the Court will continue to enlarge constitutional and statutory immunities for churches of the Hosanna-Tabor and RFRA variety. Mere equality might not seem to raise that worry, but the difficulty always is that "equality" is tricky to define. (Eisgruber and Sager, for instance, so expanded the idea of equality in their "equal liberty" theory that all sorts of formally equal laws could be struck down as invasions of religious equality under their proposal).

But I could be wrong. Maybe the Court can handle all of this stuff and my fears of protracted, distracting, exhausting and ultimately futile fights in courts and at the hustings is a chimera.

Posted by: Rick Hills | Aug 16, 2016 7:04:42 PM

Also, Marty, how common was it circa 1868 to apply such no-aid provisions to exclude churches from *neutral* funding programs to which they were otherwise entitled (as opposed to church-specific funding)? In other words, in the "real world," was this issue even squarely presented in 1868, given the presumably smaller set of funding programs that existed back then? I'm sincerely curious: while this Court is (selectively) indifferent to whether a practice has support since time immemorial, that does matter to me.

Posted by: Hash | Aug 16, 2016 6:43:43 PM

This is an unsophisticated and possibly silly or ignorant comment, but is there really a deep disagreement, such that "each side believes that it is playing defense against an invading enemy intent on cultural hegemony," over whether states should exclude religious schools from playground funding, or other sorts of funding that in no way further their religious project (other than, I suppose, making religious schools' playgrounds as safe as other schools' playgrounds and thereby removing what might otherwise be a very slight discouragement to sending one's children there)? This seems a very idealized picture of what's going on that barely touches on reality, especially when you suggest that allowing states to deny or grant funding to religious school playground improvements will defuse some explosive national debate that would otherwise occur. If the Court rules for the school, will some explosive national debate ensue over whether the Court was right? (If any explosive national debate ensues, wouldn't it be more likely prompted by the Court's ruling for the state? Whether discriminatory local practices are constitutional is itself a national question, and I suspect the heat in this debate is on the schools' side.) Who are the ardent separationists who believe that in denying religious schools playground funding they're playing defense against an invading cultural enemy bent on hegemony? Even among Missouri's relatively few amici, do many of the members of those amici, like the ACLU, really care? I would actually imagine that localization would make debates over this issue more contentious, for the reason that the agenda of a state legislature or municipal government is less crowded by really hot issues, such that debates over small-bore stuff like religious-school playground funding can get some attention.

Posted by: Asher Steinberg | Aug 16, 2016 3:02:33 PM

Actually, Marty, I'm relatively confident that, in the real world, police protection is "selective" in that certain areas/entities get greater or lesser protection for a variety of reasons.

As for the fact that the practice has existed for time immemorial, you may want to re-read Obergefell as to the relevance of that factor.

Posted by: Hash | Aug 16, 2016 1:19:14 PM

Professor Hills,isn't your argument for decentralizing disputes over RADDS the same one used by the slave states prior to the civil war? And indeed the policy regarding slavery followed by the federal government up until that time? It seems that instead of defusing arguments over constitutionally protected rights, you are merely weakening the incorporation doctrine by allowing states to trample them. Is the logical conclusion of this process the re-establishment of pre-14th amendment jurisprudence? Your proposed limiting factor of "within the pale of respectability" seems vague and subjective. Perhaps I am misunderstanding your argument.

Posted by: Michael | Aug 16, 2016 12:48:45 PM

I apologize in advance that this comment doesn't really engage with the (quite interesting) post.

"One might respond that Missouri’s discrimination against religious schools is a product of specifically anti-Catholic prejudice outside that respectable pale."

I found this sentence quite amusing given that the idiom "beyond the pale" arose from a characterization of non-English controlled Ireland as being uncivilized.

Posted by: brad | Aug 16, 2016 12:40:17 PM

This case takes place in the real world, where states don't give cash benefits to every property owner or are selective in their police and fire protection, but where states have, for time immemorial, had constitutional prohibitions aginst direct financial aid to churches.

Posted by: Marty Lederman | Aug 16, 2016 11:10:12 AM

Marty -- so if there was a Govt program that gave *every* property owner a cash benefit to refurbish their property, would you then say that churches couldn't be excluded? Conversely, if there were *special* police and fire protection given to certain entities (e.g., large entities, or ones located in high-crime areas), would you then say that churches who otherwise met the criteria could be excluded? And if not, what's the difference from this case?

Posted by: Hash | Aug 16, 2016 11:06:40 AM

Also--and now I promise I'll leave you alone--I'm not sure that federalism solved Westphalia's problems. "Cuius regio, eius religio" had its problems too, right? (See the case in my second comment!)

Posted by: Chris Lund | Aug 16, 2016 10:34:13 AM

Also, Rick, do you feel this way about the Establishment Clause? I think it would be a nightmare if we reversed Engel and Schempp. See, e.g., the facts of http://americanhumanist.org/system/storage/2/41/2/5654/RankinMotionforContemptORDER7-10-15.pdf.

Posted by: Chris Lund | Aug 16, 2016 10:32:16 AM

The idea that exemptions will be more politically secure if these claims to equal funding are denied--it's hard for me to see that, frankly. On the issue of justification, it's pretty common in the field to defend exemptions and equal funding. Doug Laycock defends the position here, http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.

Also, I'm not sure I really see how the Rosenburger/Zelman/Locke/Trinity Lutheran line of cases really has much to do with federalism. They are just about the scope of the constitutional right; whatever its scope, the constitutional right here will apply the same to the states and the federal government. Of course, smaller constitutional rights always leaves more room open both to the state and the federal government. But I don't know if I would call that federalism exactly.

Of course, none of this says anything about how Trinity Lutheran should be handled.

Posted by: Chris Lund | Aug 16, 2016 10:21:40 AM

ETA: to be clear, it is more in drawing the 'play in the joints' here between free exercise and establishment. Certain practices should not be allowed in the promotion of flexibility. So, "RADD" would require special care.

Posted by: Joe | Aug 16, 2016 10:16:09 AM

ETA: to be clear, it is more in drawing the 'play in the joints' here between free exercise and establishment. Certain practices should not be allowed in the promotion of flexibility. So, "RADD" would require special care.

Posted by: Joe | Aug 16, 2016 10:16:09 AM

Pure "neutrality" won't satisfy various people who want to bluntly overrule Lemon, especially those who want special accommodations to be put in place. Neutral laws there, even in the case of public accommodations, even those involving corporations, are threatening to them.

I personally would let states have wide discretion is trying to determine the proper line-drawing between church & state. The line drawn here is arguably acceptable as a nation-wide test, but I'm open to debate. The dissent in Everson, e.g., spoke of the "matters of common right, part of the general [p61] need for safety" line. People might draw it differently (paying for teachers or becoming a minister different than resurfacing a playground) but the line drawn here is fair as well.

Posted by: Joe | Aug 16, 2016 10:12:54 AM

Hash: One could easily say that a state may not deprive churches of a universal entitlement, such as police and fire protection, i.e., of something that is provided as of right to *everyone.* But of course no state would ever conceive of doing any such thing; therefore, the issue won't arise.

That's a far cry from--indeed, almost the polar opposite of--direct money grants to churches, which have been virtually (at least until very recently) unheard of in our traditions, not least because the constitutions of most states have categorically prohibited them and (again, until very recently) the EC was long understood to prohibited them, too.

Posted by: Marty Lederman | Aug 16, 2016 9:31:49 AM

Rick -- besides actual Blaine amendments, what are the limits of your position? For example, could Missouri deny churches police and fire protection? And if not -- as I'm guessing the Court would hold unanimously -- what's the difference between cash benefits and service benefits, especially from your RADD-federalism perspective?

Posted by: Hash | Aug 16, 2016 9:17:57 AM

Excellent post, Rick. You concede too much to Rick on the Blaine argument, however. There are three "no durect aid to churches" provisions in Missouri's constitution. Two of them pre-date Blaine, and one goes back to Missouri's first constitution, when it became a state in 1821. At least 39 of the 50 states have such constitutional provisions, most of which were enacted pre-Blaine. And unlike Blaine amendments, which were focused on *schools* (because virtually all religious schools at the time were Catholic), the basic "no direct aid to churches" provisions did not have a disparate impact on Catholic institutions, and were plainly not designed with the Catholic Church in mind --- after all, the vast percentage of churches in Missouri and elsewhere were, and are, not Catholic. Moreover, these amendments have their genesis in Virginia's “Bill for Establishing Religious Freedom,” from 1779, whose "separationist" impulse was famously designed to protect not only taxpayers, but churches themselves.

Much more to this effect on pages 24-31 of the Baptist Joint Committee amicus brief, on which I consulted:


Posted by: Marty Lederman | Aug 16, 2016 4:58:44 AM

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