Richard Epstein: Should Religious Groups Take Public Handouts?

This article first appeared on the Hoover Institution site.

A recent Supreme Court decision sheds light on an important tension in the religious clauses of the First Amendment of the Constitution.

In Trinity Lutheran Church v. Comer, a church’s application for a grant from the Missouri Department of Natural Resources (DNR) to resurface its playground with poured rubber made from recycled tires was turned down solely because of the church’s status as a religious institution. The Missouri DNR held that it was bound by this provision of the Missouri Constitution:

That 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 that 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.

The provision is one of the Blaine Amendments that was widely adopted by states in the late nineteenth century on a strong tide of anti-Catholic sentiment. The amendments, adopted in 38 states, prohibit the distribution of public funds to religious educational institutions.

In this case, the Court had to decide how the Missouri program and its constitutional amendment fared under the Establishment Clause and Free Exercise Clause of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Today, both clauses bind the states as well as the federal government.

RTS18V26 A police officer outside the U.S. Supreme Court building after the Court sided with Trinity Lutheran Church, which objected to being denied public money in Missouri, in Washington, U.S., June 26, 2017. Yuri Gripas/reuters

A divided Supreme Court, speaking through Chief Justice Roberts, overturned the DNR’s decision as a violation of the Free Exercise Clause insofar as it automatically excluded Trinity Lutheran from its program.

Justice Gorsuch, joined by Justice Thomas, did not think that Roberts’s opinion went quite far enough, because it turned on an elusive distinction between the church’s status as a religious institution and its religious conduct, protecting only the former.

Justice Sonia Sotomayor, joined by Justice Ruth Ginsburg, wrote a strong dissent arguing that the “play in the joints” between the Establishment and Free Exercise Clause allowed Missouri to exclude the Trinity Lutheran from its program, even if other states might decide to award the grant.

Trinity Lutheran has been hailed as a vindication of religious liberty in modern times. But while this ultimate judgment is correct, the analytics of the problem are more difficult.

In his opinion, the Chief Justice papered over deep inconsistencies in the Court’s jurisprudence on church and state. For starters, note that Trinity Lutheran did not involve a legal challenge on free exercise grounds. All of the justices agreed that Missouri could not ban the church from using its own funds to resurface the playground. In a world without state grants, everyone is treated equally because no one receives anything of value from public funding.

But state funding complicates the matter. In 1970, the Supreme Court struggled in Walz v. Tax Comm’n of City of New York before upholding the widespread practice of “granting property tax exemptions to religious organizations for religious properties used solely for religious worship.”

The challenge against that common practice rests on the simple view that a charitable deduction should be treated as a “tax expenditure,” indistinguishable from matching government grants, say on a one-to-one basis, to churches that raise private funds.

Ultimately, Walz salvaged deductions for religious purposes because similar deductions are also available to “hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups.” But how a set of secular deductions insulates religious deductions from challenge was left unexplained.

A similar conceptual tangle is present in the Missouri provision. Its first portion singles out payments to churches and their religious officials. But its second portion purports to adopt a strong principle of neutrality as between religious and nonreligious institutions.

But for that provision to have traction, the state could not give any benefits to any school or school official, either public or private, for such would count as discrimination against the excluded religious institutions and their leaders.

If this approach were followed, the scope of government would shrink beyond recognition, as all of the institutions mentioned in Walz would have to go on without state support. Having both groups in instead of out, as the current law does, removes most of this problem.

The same tension also arises in the interactions between the Establishment and the Free Exercise Clauses. The former clause has been read to prohibit more than the designation of one official state church. As read, it also prohibits government preferences that favor some religious groups over others, or preferences for all religious groups over nonreligious ones.

These restrictions place the federal and state governments in an impossible dilemma as every permutation of regulation seems necessarily to violate one clause or the other. And note further the complications that flow from requiring all religious persons to follow uniform rules of conduct that weigh heavily against their practices.

This latent tension came to a boil in the 1990 decision of Justice Antonin Scalia in Smith v. Employment Division , which held that neither clause was offended when the state applied any general law in neutral fashion to religious and nonreligious people alike.

Smith was one of the great constitutional disasters. By its logic, the government could force observant Jews and Muslims serving in the military or in prison to eat pork so long as they were fed the same food as everyone else. The sensible rule under such circumstances is that the government must make some reasonable accommodations for individuals’ religious beliefs.

Even in voluntary markets, it is utterly unacceptable for the government to impose conditions on employment or program participation that force religious people to give up their basic practices.

The massive bipartisan outcry against Smith led to the passage of the Religious Freedom Restoration Act of 1993, which itself was the subject of huge controversy in connection with the contraceptive mandate, issued by regulation under the Affordable Care Act, that was narrowly stuck down in Burwell v. Hobby Lobby Stores, Inc.

Yet Chief Justice Roberts happily skirted all these complications by treating Trinity Lutheran as an easy case since the church was excluded from the program solely because of its religious status.

But the case is, in reality, harder, precisely because it involved a public subsidy that everyone agrees could not be used, for example, to pay the salaries of religious officials. On these financing issues, a more comprehensive framework is needed, one that does not act as if the only question is whether the public at large has to fund religious institutions and officials.

There is also the reciprocal issue of whether religious believers have to fund programs to which they object, like the teaching of evolution in public schools. The ultimate question is whether there is a net surplus running in either direction: if so, the program presumptively fails, if not, it is presumptively fine.

Under this test, the Missouri exclusion in Trinity Lutheran fails because it creates a subsidy that religious citizens must pay for secular programs, while secular citizens do not have to pay for religious ones.

Similarly, under this approach Sotomayor’s position leaves too much play in the joints. For example, in the 1982 case of United States v. Lee, Chief Justice Burger let the United States collect the social security tax from an Amish employer of other Amish workers.

The Amish consider it a sin to take any government benefits. Nonetheless, Burger held that they could be subject to a tax from which they receive no benefits. But Lee ’s implicit cross-subsidy was transparent, and Burger was flatly wrong in asserting that Social Security would be destabilized if this religious exemption were granted.

The Social Security Act made the correct accommodation with respect to self-employed persons by allowing them to opt-out of contributions so long as they waived all benefits. No play in the joints should tolerate this distinction between the self-employed and employers, because the overall system is not impaired by either exemption.

Lee should be contrasted with the 1986 case of Bowen v. Roy, in which Chief Justice Burger held that a Native American couple, Roy and his wife, could not get food stamps if they failed to meet the statutory requirement of providing the government with their social security numbers.

Correct. Here an implicit cross-subsidy runs in the opposite direction, given the heightened risk of fraud or mistake in administering the food stamp program if the statutory requirement were dispensed with.

A fortiori, no person could refuse on religious grounds to pay taxes used to provide standard public goods like defense and law enforcement. For they would continue to get the benefit of these activities whether they paid the taxes or not.

There is little doubt that it is easier with a smaller government to avoid clashes between the Free Exercise and the Establishment clauses. But the watchwords of reasonable accommodation and improper cross-subsidy go a long way to reduce the tension to manageable levels, even if they require overruling both Smith and Lee .

Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.