When Neil Gorsuch was confirmed to the Supreme Court earlier this month, he was immediately congratulated by Michael Farris, the president of Alliance Defending Freedom, who called Gorsuch a “natural successor” to the late Justice Antonin Scalia. Farris said Gorsuch would “affirm our most fundamental freedom—religious liberty,” the issue he claimed was at stake in Trinity Lutheran Church of Columbia v. Comer, which is scheduled for oral arguments on Wednesday. But for Farris’s opponents, Gorsuch’s presence on the court is cause to fear that the Court could hand down a major decision breaching the wall between church and state.
The dispute at the center of the case is an ostensibly modest one. ADF, a conservative Christian legal advocacy group, is representing Trinity Lutheran, a Missouri church that sued the state’s Department of Natural Resources after it was denied a scrap tire grant to resurface its school playground. The crux is that Missouri’s constitution prohibits the use of state money by religious entities, and ADF argues that Trinity Lutheran is a victim of religious discrimination, in violation of the First Amendment’s Free Exercise Clause. The state’s policy “exhibits hostility to religion by singling out and excluding religious institutions solely because of who they are,” the group’s lawyers have told the Supreme Court.
The possible impact of this case could go far beyond the question of whether Trinity Lutheran will be able to use state-funded rubber on its playground. It is being closely watched by school choice advocates, who hope a ruling in Trinity Lutheran’s favor could ultimately lead to a legal assault on the so-called Blaine Amendments, constitutional provisions in 38 states that prohibit direct government aid to schools with a religious affiliation. In the most dystopian scenarios, such a ruling could give free rein to Education Secretary Betsy DeVos and other proponents of government vouchers for private religious schools, further eroding support for the public school system.
At its core, the case is about the “play in the joints” between the Free Exercise and Establishment Clauses of the First Amendment, the twin pillars of American religious freedom law. On the spectrum between total government accommodation of religion and the complete separation of church and state, the two clauses meet somewhere in the middle. There’s wiggle room there, and Gorsuch has a history of leaning toward the Free Exercise side. Critics worry a ruling in favor of Trinity Lutheran could tip the balance of power towards religion over secularism.
The case got a new wrinkle late last week when Missouri Governor Eric Greitens, a Republican who assumed office this January, announced the state would no longer be excluding churches from similar state grant programs. For now, it looks like Supreme Court will still hear arguments, but the justices have asked for additional briefing on the impact of Greitens’s announcement. (Greiten’s office said his decision “is not expected to affect the Trinity Lutheran case before the Supreme Court.”)
Most legal scholars expect that Gorsuch, who has been sympathetic to Free Exercise claims in the past, will be swayed by the church’s claims. “I would think Trinity Lutheran Daycare is probably smiling that he’s going to be on the bench,” said Michael McConnell, a former judge on the Tenth Circuit Court of Appeals (where Gorsuch also served) who now directs the Constitutional Law Center at Stanford.
There is some indication that, prior to Gorsuch’s confirmation, the eight-justice court was divided on the case. The court agreed to hear it in January 2016, less than a month before the death of Justice Scalia, but oral arguments weren’t set until February of this year, once it seemed clear that a ninth justice would soon be filling his vacant seat. It’s also easy to assume the court is split on this case because questions of religious freedom are so hyper-polarized right now.
Still, there’s a chance that Gorsuch won’t be the tie-breaking vote. “This is a case that could be unanimous,” McConnell told me. In its 2012 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC decision, the Court unanimously ruled that an elementary school teacher who taught secular and religious classes at a Lutheran church was not protected by federal anti-discrimination laws, since the First Amendment grants churches complete freedom in selecting their religious leaders. “All of the academics were thinking this is Waterloo, this is Armageddon,” said Rick Garnett, law professor at Notre Dame. “And yet everybody agreed.”
“I could imagine the justices thinking, look if we can decide this case in a way that demonstrates we’re able to find a principled moderate but still decisive answer, that might be kind of a nice thing,” Garnett said of Trinity Lutheran.
But if the eight justices were indeed split, all signs point to Gorsuch breaking a tie vote for the church.
Adam Feldman, a postdoctoral fellow in the Empirical Study of Public Law at Columbia Law School, used a topic-modeling program to analyze the language and reasoning in Gorsuch’s Tenth Circuit opinions. The cases dealing with religious freedom are “similar enough that we can get a sense of how he might rule” in Trinity Lutheran, said Feldman, who found Gorsuch has frequently taken a “loose approach” to church-state separation. This means “he’s finding ways that things don’t violate the Establishment Clause,” according to Feldman.
Gorsuch’s rulings in Hobby Lobby v. Sebelius and its sequel, Little Sisters of the Poor Home For the Aged v. Burwell, which dealt with religious exemptions from the Affordable Care Act’s contraception requirements, reveal the most about his views in this area.
In Hobby Lobby v. Sebelius, Gorsuch not only joined the full Tenth Circuit in agreeing that the corporation had standing to sue under the Religious Freedom Restoration Act, but he also wrote a separate opinion to argue the family members who owned Hobby Lobby were also protected by the law. “The mandate infringes the Greens’ religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong,” he wrote.
Later, in Little Sisters of the Poor, religious nonprofit groups already exempt from the reproductive coverage mandate claimed that filing the paperwork for exemption imposed a substantial religious burden on them. Gorsuch agreed. He signed on to a dissenting opinion on the Tenth Circuit’s decision not to rehear the case before it went to the Supreme Court, faulting the other judges for “[refusing] to acknowledge that [the plaintiffs’] religious belief is that execution of the documents is sinful.” It was crystal clear that the requirement to formally opt out of the contraception mandate burdened the plaintiffs’ free exercise, Gorsuch and four other circuit judges reasoned.
“Gorsuch has proven incredibly sympathetic to claims of substantial burden, no matter how strained they seem,” said Caroline Mala Corbin, a law professor at the University of Miami. Corbin believes there’s plenty of room between the Free Exercise and Establishment Clauses to allow Missouri to deny a state grant to a church.
“It’s hard to imagine how failure to receive government money for your playground impedes your practice of religion,” said Corbin. “But given Gorsuch’s extreme deference to religious organizations … it would not be surprising if he agreed with Trinity Lutheran Church.”
In a press release last week, ADF Senior Counsel David Cortman called the scrap tire grant denial an “attempt to deny Trinity Lutheran its constitutionally protected freedom to participate equally in society.” His language hides the fact that churches don’t—and never have—participated equally in society. In exchange for limits on what government aid they can receive, religious organizations are already exempt from a host of regulations, like nondiscrimination requirements. If religious organizations are able to receive that government aid while keeping these exemptions, it might start to look like having their cake and eating it too.