Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church

Although I was disappointed by the result in Trinity Lutheran Church v. Comer, I was hardly surprised. After oral argument, it seemed pretty obvious that Missouri was going to lose and that federalism for free exercise doctrine was going to take a hit. The interesting question was whether Locke v. Davey was going to survive or be shaved into oblivion. Locke v. Davey, I am relieved to say, survives by a hair.

The Court distinguished Locke with the good old' status-conduct distinction. "Davey was not denied a scholarship because of who he was," Roberts wrote, but "was denied a scholarship because of what he proposed to do —- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." States, therefore, still remain free to carve church schools out of voucher programs that pay for (among other things) religious education. As if to reassure federalists, Roberts dropped a footnote that Justices Thomas and Gorsuch refused to join: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch, concurring in everything but footnote 3, plainly would overrule Locke and institute simple strict scrutiny across the board for all classifications that single out religious organizations for any disabilities.

What follows is my federalist's plea to Gorsuch and Thomas (or, at least, encouragement to Roberts, Kennedy, Alito, and Kagan) to stick with the federalist course of Locke. You might ideally want strict scrutiny for anti-religious classifications, just to bring the Free Exercise clause into line with the Equal Protection clause's simple framework for suspect classifications. But are you willing to strictly scrutinize all pro-religious accommodations?

There is, of course, no necessary logical connection between tolerance for states' religious accommodations and accommodation for their "no-aid" limits on the financing of religious organizations. The Religion clauses single out religion for special protection: As a logical matter, what is wrong with a little extra protection, above and beyond that afforded by Smith, from Congress and state and local legislatures? Maybe strict scrutiny only runs one way.

There is, however, a practical and emotional connection between the rhetoric of strict scrutiny for burdens on and benefits for religious believers. The more that religious believers demand special carve-outs from regulatory burdens like the contraception mandate or anti-discrimination laws, the more unreasonable it will seem to give them the best of both worlds -- formal neutrality when it comes to benefits but special treatment when it comes to burdens. As Abner Greene noted decades ago, the practical case for special accommodations is practically strengthened by the practical limits that religious believers face in taking advantage of secular programs.

If the religious organizations succeed in their demand for simple formal neutrality with the benefits of government, then the rhetoric of strict scrutiny can hardly fail to touch special religious exemptions from burdens that everyone else has to endure. The intuition that one must take the bitter with the sweet, after all, while little more than an occasional slogan in the doctrine is a powerful mood nonetheless. If the collateral consequence of overruling Locke is that Hobby Lobby-style accommodations are viewed more skeptically, then, from the point of religious believers, MLC will be a Pyrrhic victory and a lousy bargain for religion.