Kalish: SCOTUS Religion Wrap Up

Jun 29, 2017

As is typical on the last day of a Supreme Court term, we heard announcements about some controversial cases last Monday. And it was notable how many involved religion.

The Court allowed a limited version of Trump’s travel ban to proceed while the case awaits a full hearing. I was drawn, though, to the dissent. The Court went out of its way not to comment on the merits arguments, one of which is that the ban violates the First Amendment’s Establishment Clause by targeting a particular religion. However, Justices Thomas, Alito and Gorsuch said the Government had “made a strong showing that it is likely to succeed on the merits,” suggesting that at least these three are finding the government’s defense persuasive.

The Court also announced that it would hear an appeal from the Masterpiece Cakeshop, which was found to have violated Colorado’s Public Accommodations Act by refusing to bake a cake for a same-sex wedding. Similar disputes have arisen throughout the country, but the results so far have been the same: courts have sided with states’ anti-discrimination laws over religious freedom arguments.

But the biggest decision – and the one getting the most media attention - was Trinity Lutheran Church v. Comer, where the Court strengthened the First Amendment’s Free Exercise Clause and, according to Justices Sotomayor and Ginsburg, substantially weakened its Establishment Clause.

A Missouri grant program provides a limited number of cash reimbursements to resurface playgrounds. To avoid conflicts with their state constitution, which prohibits the direct or indirect funding of religion, houses of worship were excluded. But, the Court ruled that violated the Free Exercise Clause by singling out a group based on their religious “status” and making them “’choose between their religious beliefs and receiving a government benefit.’”

Dissenting, Justice Sotomayor noted that the Court has always permitted differing treatment to protect the religious freedom guaranteed under both the Free Exercise and the Establishment clauses. But the Court avoided discussion of the Establishment Clause and, indeed, referred to Missouri’s interest in upholding its own constitutional protections as a mere “policy preference.”

Justice Sotomayor ended with a warning. The Court, she said, was “lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”