Who would have thought Justice Gorsuch—the newest and most controversial SCOTUS appointee in some time—would excite his fans and disappoint his enemies in a case involving shredded-tire resurfacing for a Lutheran preschool playground? Monday, the Supreme Court protected a Lutheran preschool, and thus made a huge statement about religious liberty in this country, with a 7-2 decision recognizing the full authority of the First Amendment.
In Trinity Lutheran Church of Columbia, Inc. v. Comer, the case revolved around a program the state of Missouri had created to provide shredded-tire resurfacing on playgrounds located at nonprofit organizations to make the surface safer for kids. Even though Trinity Lutheran preschool met all the state’s criteria for a new playground surface, the state rejected the school from the program because of the Blaine Amendment, an old law designed to block funding to Catholic schools.
In a press statement, the Becket Fund (one of the leading religious liberty defenders in the country which filed a friend-of-the-court brief on behalf of the case) said, “the majority opinion made clear the government can’t blacklist religious organizations from participating in public safety programs simply because they are religious.” Hannah Smith, senior counsel at Becket said, “The Court’s decision is good for kids and good for religious liberty. Trinity Lutheran was simply asking that the government play fair, treat churches equally, and help the preschool make its playground safer for children. Today’s decision does just that.”
This was not only a win for religious liberty advocates and free exercise clause fanatics, but a win for folks who had a watchful eye on Justice Neil Gorsuch.
For those hoping he would hear cases as an originalist, they were not disappointed. Gorsuch joined in most of the majority opinion but made a couple minor exceptions in his own separate opinion. He not only outlined his opinion as a strict constitutionalist would, but he writes it in no-nonsense prose even non-lawyers can understand.
First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante, at 12. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).
Furthermore, diehard fans of the First Amendment—which, uh, we should all be—could cover the walls of their homes and bathe in the beautiful ink of Gorsuch’s dissection of the free exercise clause.
After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990). And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993). Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. See Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 716 (1981); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947). I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.
For conservatives who voted for Trump solely to (try) to ensure an originalist judge would be nominated to the Supreme Court, but perhaps are less enthralled with how Trump is currently behaving, Gorsuch’s opinion is salve for the soul and the ruling in general is a win for religious liberty advocates.
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