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.