On June 26, the Supreme Court held 7-2 that the Missouri Department of Natural Resources violated the First Amendment’s free-exercise guarantee when it deemed Trinity Lutheran Church categorically ineligible to receive a grant under Missouri’s Scrap Tire Program simply because it is a church, challenging a provision in the Missouri constitution and similar provisions in 37 other states known as Blaine Amendments

The Trinity Lutheran decision, however, strongly suggests that the Court may be likely to conclude other applications of Blaine amendments violate the First Amendment.

In this series of articles, we asked authors to consider the implications of the Court’s ruling are for other applications of Blaine Amendments and similar state-law restrictions. 

To see all articles in this series visit: Trinity Lutheran and Blaine Amendments

Americans have, for better or worse, grown used to overconfident pronouncements from the members of the Supreme Court about matters – the true nature of golf, for example, or the long-term cultural implications of social media – that might seem outside their training and expertise. That said, Chief Justice Roberts was on pretty solid ground when he observed, in his opinion for the Court in the recent Trinity Lutheran case, that “[y]oungsters . . . often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” And, the foundation is no less firm for the Court’s conclusion that the First Amendment does not permit governments to discriminate against religious believers and organizations when distributing public benefits.

The Trinity Lutheran litigation was about replacing the pea-gravel on a church-run preschool’s playground with shredded scrap tires. The question presented to the justices was whether the Constitution allows the state of Missouri to refuse an otherwise-available reimbursement grant for this project simply because the applicant is a church. By a vote of 7-2, they concluded – correctly, I believe – that it does not. It is, as the Chief Justice wrote, a “basic principle” that the First Amendment “protect[s] religious observers against unequal treatment[.]” However, while the Court answered this question clearly, the ruling invited, and ignored, others. As a result, the case’s implications and impact are, for now, uncertain.

Among the uncertainties is the Court’s eventual response to a far-reaching (and misguided) argument that the Constitution does not permit public funding, even in the context of “secular” programs, of religious organizations that “discriminate.” This claim was pressed in an amicus curiae brief filed by the Lambda Legal Defense and Education Fund and, although the justices did not engage it in their opinions, it did come up during oral arguments and it will almost certainly play a role, going forward, in both the courts of law and the courts of public opinion.

Why is Lambda Legal’s argument misguided? For starters, it rests on a confused understanding of what “discrimination” is and of why it is wrong, when it is wrong. It assumes that there is something objectionable, or “invidious,” about a religious organization – a school, for example, or a social-service agency – taking its religious commitments and mission into account in its employment, admissions, and other policies. In a liberal and diverse political community, however, there is plenty of room in the public square for distinctive organizations and their work. It is wrong, in almost every instance, for the government to take a job applicant’s religion into account but it is not wrong for, say, Trinity Lutheran to do so.

Indeed, as the Court reaffirmed five years ago, unanimously, in the Hosanna-Tabor case, the freedom of religion that the First Amendment safeguards includes, sometimes, the freedom to “discriminate.” In other words, protecting and promoting religious freedom, which American governments may and should do, includes not only tolerating but also preserving the right of religious institutions to engage in forms of “discrimination”—for example, using religious criteria in the hiring and firing of ministerial employers—that would and should be illegal if attempted by governments or most commercial entities.

In their amicus brief, Lambda Legal urged the Court to make sure that “adequate safeguards prevent channeling government aid to advance religious activities or to support harmful discrimination.” What’s more, they contended that “[t]he Establishment Clause prohibits government from providing direct aid to sectarian schools that use the funds or materials for religious purposes or engage in religious discrimination.” However, the First Amendment regulates and constrains governments, not religious institutions, and the receipt of public funds generally does not transform the recipient into a constitutionally regulated “state actor.” Governments may and do cooperate with non-state agencies all the time, in order to accomplish permissible and public goals, but this cooperation does not convert the actions and practices of those agencies into public ones.

Putting aside the constitutional question, though, there is no denying the fact that the case that the “no public funds for discrimination” slogan carries significant rhetorical and political weight and activists engaged in policy arguments are not likely to carefully distinguish governments’ invidious uses of suspect or irrelevant criteria from religious institutions’ efforts to hire for religious mission and act with religious integrity. There will almost certainly be powerful efforts going forward to attach nondiscrimination requirements to government grants, contracts, and subsidies. The unconditional-conditions doctrine is, to put it mildly, murky and its application to antidiscrimination regulations tied to direct or indirect public funding is uncertain. Trinity Lutheran’s rejection of discriminatory exclusion from funding programs could end up mattering very little if voters and elected officials decide that religious institutions’ efforts to act with mission-integrity render them unworthy to receive public benefits or cooperate for the public good.

It is a good thing to have religious and other non-state schools, hospitals, agencies, and associations participating actively in the public square and in civil society. That these religious entities are not the government, and so do not operate under the same constraints as governments do, should be welcomed, not merely tolerated and certainly not opposed. We should resist the urge, and reject the argument, to equate religious distinctiveness with harmful and invidious discrimination.

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame. He is a leading authority on questions and debates regarding the role of religious believers and beliefs in politics and society.

All views and opinions presented in this essay are solely those of the author and publication on Cornerstone does not represent an endorsement or agreement from the Religious Freedom Institute or its leadership.