An expansive understanding of the free exercise clause continued to receive broad support in the Supreme Court this term—and free exercise arguments are coming back to the high court next term. In Trinity Lutheran Church of Columbus v. Comey, the nine-member court held seven to two that states may not exclude a church from a secular program merely on the basis of religious identity.
Trinity Lutheran had wanted to participate in a Missouri program that provided shredded tires to resurface playgrounds to make them safer. The church’s argument was that the spending was not going toward a religious purpose and they were qualified to participate. Missouri, however, argued that churches must be categorically excluded from a state benefits program because of a state constitution’s ban on funding for churches.
This was error, wrote Chief Justice Roberts for the majority, because “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.'” Missouri could not provide such a justification. Missouri’s discrimination on the basis of religious identity could not stand, and Missouri’s constitutional provision on church funding must give way to the U.S. Constitution’s free exercise clause.
Seven-to-two line-ups are not unheard of on the court, but a disagreement over a footnote suggests that some of the justices are looking at an even more expansive application of the free exercise clause. Justices Thomas and Gorsuch concurred in all of the chief justice’s opinion except for a limiting footnote. That footnote, quoted here, presents the next evolution of free exercise jurisprudence:
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.
In other words, the majority was not ruling on discrimination based on religious actions, just on religious identity. But in the final orders list, the justices teed up just such a free exercise case for next term, due to begin in October.
In that case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, the justices will have to consider the case of a baker who claims the application of Colorado’s public accommodation law violated his free exercise right to decline to bake a cake for a same-sex wedding. In other words, discrimination based on religious actions, rather than merely religious identity, is coming back to the high court.
Gabriel Malor (@GabrielMalor) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an attorney and writer in Washington, D.C.
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