Freedom of Religion

Discrimination Against Religion

Three Justices opine.

|The Volokh Conspiracy |

Today's statement of Justice Kavanaugh, joined by Justices Alito and Gorsuch, respecting the denial of certiorari in Morris County Bd. of Chosen Freeholders v. Freedom from Religion Found.:

Morris County, New Jersey, distributes historic preservation funds to help preserve local buildings such as libraries, schoolhouses, performing arts centers, and museums. As part of that program, Morris County also distributes funds to help preserve religious buildings such as synagogues, temples, churches, and mosques. But it turns out that New Jersey law, as recently interpreted by the New Jersey Supreme Court, prohibits Morris County from awarding grants to preserve religious buildings.

The petitioners here argue that the State's exclusion of religious buildings—because they are religious—from Morris County's historic preservation program constitutes unconstitutional discrimination against religion in violation of the First and Fourteenth Amendments to the United States Constitution. The New Jersey Supreme Court concluded that the State's discrimination did not violate the First and Fourteenth Amendments.

In my view, the decision of the New Jersey Supreme Court is in serious tension with this Court's religiousequality precedents.

As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the FreeExercise Clause and the Equal Protection Clause. In the words of Justice Brennan, the "government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits." McDaniel v. Paty, 435 U.S. 618, 639 (1978) (opinion concurring in judgment). Under the Constitution, the government may not discriminate against religion generally or against particular religious denominations. See Larson v. Valente, 456 U.S. 228, 244 (1982).

The principle of religious equality eloquently articulated by Justice Brennan in McDaniel is now firmly rooted in this Court's jurisprudence. As Justice Kennedy later wrote for the Court, a law may not discriminate against "some or all religious beliefs," and "a law targeting religious beliefs as such is never permissible." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532, 533, (1993). Put another way, the government may not "impose special disabilities on the basis of … religious status." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990).

We have applied that bedrock principle of religious equality in numerous cases. See, e.g.,Trinity Lutheran Churchof Columbia, Inc. v.Comer, 582 U.S. __ (2017); Good News Club v. Milford Central School, 533 U.S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993); McDaniel.

For example, in McDaniel, a Tennessee statute disqualified ministers from serving as delegates to Tennessee's constitutional convention. The Court ruled the statute unconstitutional, explaining that the Constitution does not allow the government to discriminate against religious persons by prohibiting their service in a public office.

In Good News, a school district in New York allowed residents to use the local public high school for social, civic, and recreational events. But the school district prohibited a religious organization from using the school, simply because the organization was religious. This Court held that the school district's exclusion of the religious organization was unconstitutional discrimination against religion.

That same principle of religious equality applies to governmental benefits or grants programs in which religious organizations or people seek benefits or grants on the same terms as secular organizations or people—at least, our precedents say, so long as the government does not fund the training of clergy, for example. See Trinity Lutheran; Locke v. Davey, 540 U.S. 712, 721, 725 (2004).

In Trinity Lutheran, Missouri barred a religious school from obtaining a state funding grant for the school's playground. By contrast, Missouri allowed secular private schools to obtain state funding grants for their schools' playgrounds. This Court held that Missouri's law was unconstitutional. The Court stated that the Constitution "protects religious observers against unequal treatment." In the Court's description, Missouri's law reflected an unconstitutional policy of "No churches need apply." The Court minced no words: Discriminating against religious schools because the schools are religious "is odious to our Constitution."

In this case, New Jersey's "No religious organizations need apply" for historic preservation grants appears similar to, for example, Missouri's "No religious schools need apply" for school playground grants and New York's "No religious clubs need apply" for use of school facilities and Tennessee's "No ministers need apply" for state office.

To be clear, this is not a case like Lee v. Weisman, 505 U.S. 577 (1992); Marsh v. Chambers, 463 U.S. 783 (1983); or County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), where the government itself is engaging in religious speech, such as a government-sponsored prayer or a government-sponsored religious display. Nor is this a case like Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), or Smith, where a religious group or person is asking for an accommodation or exemption from a generally applicable law. Under the Court's precedents, both of those categories of cases can pose difficult questions. This kind of case, by contrast, should not be as difficult: Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.

[* * *]

At some point, this Court will need to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious. But at this point and in this case, it is appropriate to deny certiorari, for two main reasons.

First, the factual details of the Morris County program are not entirely clear. In particular, it is not evident precisely what kinds of buildings can be funded under the Morris County program. That factual uncertainty about the scope of the program could hamper our analysis of petitioners' religious discrimination claim.

Second, this Court decided Trinity Lutheran only recently, and there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs.

For those reasons, denial of certiorari is appropriate. As always, a denial of certiorari does not imply agreement or disagreement with the decision of the relevant federal court of appeals or state supreme court. In my view, prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court's precedents and the Constitution's fundamental guarantee of equality.

Seems correct to me, and should send a valuable signal to lower courts (and to prospective litigants who are wondering whether to bring challenges to similar programs).

NEXT: Trump Administration Continues to Lose Sanctuary City Cases - this Time Respecting New Fiscal Year 2018 Grant Conditions Imposed on State and Local Government Receiving Federal Law Enforcement Grants

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  1. Freedom of religion is not freedom “from” religion. As the state continues its ever expanding grasp over the economy, it’s critical that the state treats religious organizations fairly and justly, and not exclude them on a misconceived ground of not being able to have anything to do with them. Such an action would favor atheism over religion, and is not consistent with the first amendment.

    Sometimes, I think certain liberals would like nothing better than to couple a first amendment definition where the state can’t be involved with religion, with communism, where the state owns everything. Such a situation would effectively eliminate organized religion.

    1. communism

      what? Secularism is communist now?

      1. Reread what I said. Interpret correctly.

        Bonus points: See how communism in the Soviet Union treated religion. Ask yourself why.

        1. Sarcastro os a bitter atheist.

          1. Atheism now has a practice of religion, church of atheism, so they should get no federal funding either. Libertarians for the win.

            1. Right-wingers clinging to superstition — and trying to establish limitless special privilege for superstition, often with a ‘heads we win, tails you lose’ approach — are among my favorite faux libertarians.

              1. Hmmmm. In Kirkland’s world, “we ask that the state treat religious buildings the same as it treats secular buildings” equates to “establish(ing) limitless special privilege for superstition”. That’s some first rate rational thinking, Rev.

                1. How about: Not only do we not have to pay taxes, but we also get our cut of government largesse from treasury funds to which we don’t contribute.

                  1. Alpheus Drinkwater: Generally speaking (a bit of an oversimplification, but not much), churches get pretty much the same tax exemption as other nonprofits. Religious schools are tax exempt, but so are secular schools. Churches are tax exempt, but so are most other nonprofit community organizations.

                    As the opinion says in its opening sentence, “Morris County, New Jersey, distributes historic preservation funds to help preserve local buildings such as libraries, schoolhouses, performing arts centers, and museums.” All those buildings are owned by organizations that “do … not have to pay taxes, but … also get [their] cut of government largesse from treasury funds to which [they] don’t contribute” (though of course their donors and members do contribute to those treasury funds). The question is whether churches should be denied the same historic preservation funds that other institutions can receive.

                    1. Furthermore, one presumes the rationale for distributing historic preservation funds is (taking the role of government in doing so as justified as given for the purposes of argument) to preserve cultural touchstones, historic examples of architecture, and so on, despite the increased costs of maintenance to keep them in such condition despite archaic building methods and inefficient materials.

                      Just because a building has a religious purpose does not make it any less culturally relevant to the community from a historical perspective, or negate the relevance of its architecture. To the contrary, religious movements have a history throughout a certain time period of investing in very conscientiously bold and well-crafted examples of prominent architectural styles, and have been committed to preserving them in the intervening years so that a greater proportion of them have survived compared to secular privately held examples that would have been contemporary peers.

                    2. I take both of your points, and they are good ones. However, there is not an amendment to the Constitution which reads “Congress shall make no law respecting an establishment of a nonprofit agency.” There is one that specifically mentions religion. I realize that there are arguments about the interpretation of that clause and its applicability to these situations.

                    3. And extending legal benefits broadly available to all non-profits to religious non-profits is establishing a religion, how? I’m not seeing the jump, there.

                    4. Not so much legal benefits, but money. Taxpayer dollars directly to religious organizations. Are you saying that the establishment clause does not apply to the situation where government is directly funding religion?

        2. I cannot parse this other than that separation of church and state is communism: Sometimes, I think certain liberals would like nothing better than to couple a first amendment definition where the state can’t be involved with religion, with communism, where the state owns everything.

          Also, not an atheist.

          1. I tire of your deliberate obtuseness. No one else has an issue.

          2. You won’t parse it other than that. I seriously doubt you’re stupid enough to be incapable of understanding the point: If the government can’t have anything to do with religion, and everything is within the government, then religion has been, de facto, outlawed.

            1. You give Sarcastr0 far too much credit.

    2. As the state continues its ever expanding grasp over the economy, it’s critical that the state treats religious organizations fairly and justly

      It would be more accurate to write, “As the state continues its ever-expanding grasp over the economy, it’s critical that the state loosen its ever-expanding grasp over the economy.”
      We are just re-arranging deck chairs on the Titanic if say say, “Make sure you drown religious and non-religious enterprises equally.”

  2. The fact that “there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question” should not be the basis of cert. denial from a normative perspective.

    1. Well, it was the second of two reasons given. Therefore it was not THE basis, but rather A basis for refusal.

      You’re welcome.

    2. There are some good reasons for that being one of the considerations. The Supreme Court tends to make better decisions when the issues have been hashed out in the lower courts first.

    3. If only they would grant cert and use it as a vehicle for overturning Trinity Lutheran.

    4. Agreed. It basically is just saying, “We’re not taking this case because we haven’t avoided the topic long enough.”

      The problem with this business of avoiding valid cases because you don’t think the lower courts have developed them enough yet, is that it deliberately avoids doing what the Court exists to do: Decide cases and controversies.

  3. Surprised they decided to cite Brennan

    In the words of Justice Brennan, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” McDaniel v. Paty, 435 U.S. 618, 639 (1978) (opinion concurring in judgment)

    It’s hard to see how a religious exemption isn’t a benefit with religion as the basis for the classification. Do they think The Court has been incorrect to allow them?

    1. I think both sides like to cite leading lights on the other side.

    2. Yes. I wonder what Kavanaugh thinks of the various tax privileges religions enjoy.

      (Actually, I don’t.)

      1. bernard11: The great bulk of those tax privileges (with a few exemptions, such as the parsonage allowance) are pretty much equally enjoyed by nonreligious nonprofits, such as the museums, performing arts centers, and schools that are mentioned at the start of the opinion.

  4. I (somewhat rhetorically) wonder what Justice Kavanaugh’s take on the constitutionality of RFRAs is.

    I would think they would, depending perhaps on the specifics of a given RFRA, be considered unconstitutional. They discriminate on the basis of religious beliefs. Whether or not the government requires you to do certain things depends on whether or not you hold particular religious beliefs.

    If I hold a religious belief that, e.g., it’s improper to facilitate access to (what I consider) abortifacients, then I don’t have to provide coverage for them to my employees. However, if I don’t hold such religious belief, I do (if my situation meets other particulars of the law) have to provide such coverage. Presumably, non-religious reasons for not wanting to provide such coverage (e.g., costs or general disrespect for female employees) aren’t enough to get me out of having to provide such coverage.

    1. How does conscientious objection from military service fit into this?

      1. I’m not sure.

        For my part, I’m not in favor of conscientious objection being a basis for getting out of certain military service unless most all reasons for getting out of that service are accepted (in which case there really wouldn’t be requirements for that service).

        But I think it might be distinguishable from the RFRA situation in that it is the gov’t designating a particular reason why someone wouldn’t be required to do something (which might otherwise be required) and in designating that reason the gov’t isn’t itself discriminating based on whether there’s a religious component to someone’s conscientious objection (unless I misunderstand how conscientious objection works in the U.S.). Religious reasons are treated equally with non-religious reasons, even though all reasons aren’t treated the same.

        So it’s more like a rule of general applicability (where the rule at issue is one which grants exceptions) which might affect people differently based on their religious beliefs, but which doesn’t itself and isn’t intended to discriminate based on religious beliefs. The reason for an exception need not be religious. On the other hand, RFRAs create rules which treat religious and non-religious reasons differently – and do so intentionally. They mean to discriminate based on whether one’s reason for not wanting to do something is religious or not.

        I’d have to think the issue through some more. I’m not sure that’s where I’d come out after I did. But that’s my quick take.

        1. This was done because religious liberty is a cornerstone of freedom and liberty in America. And these days Christians rights are under constant assault from bitter hateful progressives.

          1. You and other right-wingers are welcome to mutter bitterly about all of this damned progress, reason, education, science, tolerance, and modernity, but only so long as you toe the line your betters have established.

            Losing the culture war sucked.

            For you.

            1. Arty, you really do make an excellent argument for the extermination of yourself and your fellow travelers. Please do go on.

          2. I would say Christian’s rights as you would define them are under assault from all progressives, not just the bitter, hateful ones.

            1. That might be an overreach, but these days it’s hard to say.

            2. There are progressives that are not bitter and hateful?

    2. Yeah, the problem there is telling you that you have to provide it if you don’t have a religious reason for not wanting to. Mere whim should be enough reason, because the government doesn’t actually have a good reason for the command.

      It wasn’t mandated by the statute, which wouldn’t have passed if it was. It was a regulatory decision with kind of a sketchy basis.

      I’m of the opinion that special accommodations for religion shouldn’t be necessary, because any accommodation that it would make sense to extend for religious reasons should already be extended for any reason whatsoever. If you don’t have enough basis to mess with somebody’s religion, you don’t have enough basis to mess with their secularism, either.

      But that’s my policy preference, the Constitution specially calls out religion for protection, which was the problem with the Supreme court ruling the RFRA was intended to override.

  5. A religious building can also be historic and worthy of preservation. Seems like we over complicate stuff many times. The worry was establishing a state religion. Preservation of historic buildings is no even remotely close to that.

    1. The state religion is now hostility to religion.

  6. I blame too many people being taught that separation of church and state means zero interaction. It means not enshrining a state religion. Look at the 13 colonies. Puritans, Quakers, Catholics…what did they all flee? State religion. They certainly had no issues with religiosity in government. They just didn’t like it when the state said “we’re all Anglicans and you either have to pray with us or die.”

    1. That is my understanding of the position being endorsed by Michael McConnell, that the religious establishment clause only pertains to historic examples of establishment. It was referenced here in a post a few weeks ago. Not being an original public meaning guy, I’m not convinced. But it’s a solid position. And as Prof. McConnell points out, it gives a far brighter line to interpret than Lemon or other tests of religious entanglement.

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