Farewell to Footnote 3 of Trinity Lutheran

In Carson v. Makin, the Chief Justice stealthily eliminated the status/use distinction.

Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court's swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:

This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

Footnote 3 crafted some sort of distinction between "religious identity" and "religious uses." That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.

Justice Kennedy, as well as Justice Kagan joined Roberts's opinion, including Footnote 3. But Justices Gorsuch and Thomas refused to join Footnote 3, thus depriving the Court of a majority opinion on that point. Gorsuch wrote a concurrence that cast doubt on the dichotomy in Footnote 3:

Second and for similar reasons, I am unable to join the footnoted observation, n. 3, that "[t]his case involves express discrimination based on religious identity with respect to playground resurfacing." Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only "playground resurfacing" cases, or only those with some association with children's safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court's opinion.

Justice Sotomayor dissented in Trinity Lutheran, joined by Justice Ginsburg. She observed that the status/use line will not hold up:

In the end, the soundness of today's decision may matter less than what it might enable tomorrow. The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see also ante, at 1–2 (THOMAS, J., concurring in part) (going further and suggesting that lines drawn on the basis of religious status amount to per se unconstitutional discrimination on the basis of religious belief).

Five years later, with Carson v. Makin, Footnote 3 is gone. Since it was never actually the opinion of the Court, technically, there was no need to overrule any precedent. But Chief Justice Roberts's majority opinion stealthily eliminates the status/use distinction:

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of "any church, sect or denomination of religion." We noted that the case involved "express discrimination based on religious identity," which was sufficient unto the day in deciding it, and that our opinion did "not address religious uses of funding." . . . Maine's argument, however—along with the decision below and Justice Breyer's dissent—is premised on precisely such a distinction.

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. "[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school." Our Lady of Guadalupe School v. Morrissey-Berru (2020).

Farewell to Footnote 3. Roberts does it so effortlessly. Blink and you'll miss it.

In the very next paragraph, Roberts endorses the reasoning from Gorsuch's concurrence--that the distinction between status and use was always illusory:

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the "nonsectarian" requirement. That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Justice Sotomayor dissented in Carson. And she has a see-I-told-you-so moment:

As Justice Breyer explains, this status-use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court's analysis could "be manipulated to call for a similar fate for lines drawn on the basis of religious use." That fear has come to fruition: The Court now holds for the first time that "any status-use distinction" is immaterial in both "theory" and "practice." It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.

And I have to think that Justice Kagan had some buyer's remorse. She joined the Trinity Lutheran majority, including Footnote 3, perhaps in the hopes of forestalling a bigger defeat. Five years later, we get Carson v. Makin.

So many precedents have been overruled this term that the demise of Footnote 3 has flown under the radar. Red Flag June was one for the ages.