Today was a busy day for religious liberties at the Supreme Court, one that promises busier days ahead. In particular, the Court may have finally placed the anti-Catholic 19th-century “Blaine Amendments” in many states’ constitutions on a long-overdue path to extinction.
The Court took three actions on different fronts, with surprising support from its liberal wing. In Trinity Lutheran Church of Columbia v. Comer, the justices by a 7–2 vote held that Missouri violated the Free Exercise Clause of the First Amendment by refusing to provide grants for playground resurfacing to a Lutheran church’s preschool and daycare center, solely because it was a religious institution. In Trump v. International Refugee Assistance Project, the Court unanimously voted to temporarily reinstate portions of President Trump’s revised “travel ban” executive order, which had been almost entirely stayed nationwide by the Fourth and Ninth Circuits, pending a final hearing in October. And in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court agreed to hear a case on whether a Christian can be forced by the state of Colorado to bake a cake for a gay wedding. In each case, the liberal position had won in the lower courts. But the justices were divided over the breadth of the ruling in Trinity Lutheran, and the other two cases will face a final decision no sooner than this fall.
No Wall between Church and Blacktop
Trinity Lutheran was a classic case of a “separation of church and state” stance so aggressive that the state ended up violating the church’s right of free religious exercise. In theory, the Free Exercise Clause is simple: It holds that the government may not restrict the practice of religion, whether that means worship or conduct following the dictates of one’s faith. So is the Establishment Clause: It holds that the government can’t run its own church or require anyone to join or support a particular church. But the growth of government, the march of militant secularism, and the drift of constitutional law far from its moorings have combined to create an endless parade of controversies, including collisions between the two requirements.
Yet, the First Amendment doesn’t say anything about separation or walls, and it was written when individuals and church groups were much more separate from the state than anyone in America can be today. The more the government does, the more of our money it takes and then redistributes, the smaller the space becomes for believers to simply stay separate. That’s exactly how the Trinity Lutheran case arose: The state got into the business of paying for playground resurfacing, then announced that no churches need apply — even though Trinity Lutheran’s playground was open to the whole community when school was not in session.
Discrimination against religious groups in Missouri, as in more than 30 other states, is even older, enshrined in Article I, Section 7 of the state Constitution:
No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and . . . no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
This “Blaine Amendment,” adopted in 1875, may sound innocuous, but it was part of a nationwide anti-Catholic movement. A similar amendment to the U.S. Constitution passed the House of Representatives in 1875 by a vote of 180–7 with the support of President Grant and the sponsorship of then–House speaker James G. Blaine, before narrowly failing in the Senate. Evidence of the anti-Catholic purpose of these amendments is pervasive and notorious. It contributed to the Catholic backlash that cost Blaine the presidency in 1884, after a speaker at one of his campaign events denounced the opposing Democrats as the party of “rum, Romanism, and rebellion.” Justice Breyer noted the bigoted impetus for the Blaine Amendments in a 2002 dissent, and the Cato Institute argued in Trinity Lutheran that the Court should consider that history in deciding the case.
Chief Justice Roberts’s opinion in Trinity Lutheran didn’t take the state’s Blaine Amendment or its origins head-on, finding it enough to conclude that Missouri’s “policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. . . . The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church — solely because it is a church — to compete with secular organizations for a grant.” Even Justices Kagan and Breyer agreed. Perhaps significantly for Masterpiece Cakeshop, six Justices signed on to Roberts’ stirring conclusion, in which he unearthed an 1818 quote from one lawmaker who argued that it would be “persecution” to ask a Jew to renounce his faith in order to participate in politics.
But the Court remained divided on how far Trinity Lutheran might reach. Roberts’s opinion explained that the case was different from a previous case allowing the state of Washington to refuse to fund a theological student, and included a footnote stating that the case was only about playgrounds and didn’t decide “religious uses of funding or other forms of discrimination.” Justices Thomas and Gorsuch refused to join that footnote and questioned whether the Washington case had been correctly decided, while Breyer agreed with the outcome but thought the case so open-and-shut that he wrote his own, shorter opinion. Stay tuned.
The Travel-Ban Ban, Banned . . . for Now.
Trinity Lutheran will give plenty of ammunition to ongoing challenges to how states apply their Blaine Amendments and how they misread the Establishment Clause; the Court noted that nobody even tried to argue that letting a church pave a playground on the same terms as everyone else amounted to the state establishment of religion. But ironically, support for overturning the Blaine Amendments in their entirety could come from an unlikely quarter: the challengers to Trump’s “travel ban” executive order.
Under longstanding Supreme Court doctrine, aliens excluded from the country under federal immigration law had no constitutional right to challenge the “plenary power” used to exclude them for any reason — even when that reason would violate the alien’s First Amendment rights had he been a citizen. Those who brought suit against Trump’s executive order tried to get around that doctrine by arguing that anyone can challenge a violation of the Establishment Clause. The Fourth Circuit agreed, and concluded that the travel ban was the equivalent of a state church, even though the revised ban didn’t draw any religious distinctions at all, and only applied to six of the world’s 51 majority-Muslim countries. It reached that conclusion on the basis of Trump’s having explicitly pushed for a “Muslim ban” on the campaign trail, and on evidence that the second travel-ban order was a descendant of that original campaign proposal, concluding that it was thus motivated by religious animus toward Muslims. To the Fourth Circuit, that was enough to both constitute an Establishment Clause violation and overcome the high bar to courts’ examining national-security justifications for immigration decisions.
To be blunt, neither side of the debate over Trump’s intentions has been entirely honest in its arguments.
To be blunt, neither side of the debate over Trump’s intentions has been entirely honest in its arguments. The Fourth Circuit and the Justice Department both framed the dispute as a question of whether Trump had a legitimate national-security motive or was targeting Muslims, as if these rationales were mutually exclusive. In reality, this either/or framing is erroneous, because Trump’s original “Muslim ban” speech clearly combined both motives: It made an argument that halting Muslim immigration would protect our nation from the threat of terrorism. That’s obviously a serious over-generalization — but then, there’s a good reason the administration has gradually narrowed the focus of the travel ban so it’s limited to countries from which it is particularly difficult to vet prospective entrants into the U.S. and those with a history of sponsoring radical Islamic terror, rather than impose a religious test. Hopefully, even if the Court upholds the travel ban on the basis of the unusual breadth of federal power over immigration (as it should), it will still find a way to caution the administration that it is treading close to dangerous ground. The same religious liberties that apply within the country to Trinity Lutheran and Masterpiece Cakeshop apply to Muslim Americans, too.
The Court today unanimously halted the Fourth Circuit’s order in its tracks, although it kept the injunction against Trump’s ban in place for those aliens with family connections and those with pre-existing educational or business ties to the United States. As Justice Thomas noted, by allowing Trump to ban other entrants from the countries in question while the case proceeded, the unsigned opinion implicitly assumed that Trump is likely to win at least a partial victory in the case. Given the incredulity of liberal commenters at the idea that the Trump administration might have any leg to stand on, that alone is a sweet victory even if Trump ends up losing in the end. The Court divided on how much of the order to reinstate, with Justices Thomas, Alito, and Gorsuch arguing that there was no principled or workable basis for drawing a line between prospective entrants based on their pre-existing ties to the U.S. But even the Court’s liberals were clearly wise to how liberal legal activists might try to game the temporary exception it created:
As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
The Court would not have explicitly banned such a tactic without an expectation that the “resistance” groups challenging Trump’s order would try to employ it.
The justices will end up hearing a bunch of challenges to the travel ban, ranging from standing to sue to whether the immigration statutes actually give Trump the specific power he invoked. But if the challengers somehow end up convincing the Court to follow the Fourth Circuit’s lead in looking to discern the order’s underlying motives, they may end up adding fuel to the fire set by Trinity Lutheran around the Blaine Amendments.
READ MORE:The Supreme Court’s Religious-Freedom Message: There Are No Second-Class CitizensIn Trinity Lutheran, One Question Exposed Missouri’s Historical Hostility to ReligionDo Safer Playgrounds ‘Advance Religion’?
— Dan McLaughlin is an attorney in New York City and an NRO contributing columnist.