Gorsuch Makes His Mark

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Gorsuch Makes His Mark

The lasting import of the Supreme Court’s ruling on Monday in Trinity Lutheran Church of Columbia, Inc. v. Comer stands to be the response to a footnote in the majority opinion by Chief Justice John Roberts.

Writing for the majority in the 7-2 decision, Justice Roberts concluded that public money may be used to fund the resurfacing of a playground with rubber from recycled tires at a Missouri preschool administered by a church, despite the state's prohibition of government support of religiously affiliated educational institutions. Justice Roberts contended the state decision against assisting the church in this matter "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."

Justice Roberts, however, qualified his opinion with a footnote regarding the latitude for such government funding: "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.”

While concurring with Justice Roberts, both Justice Neil Gorsuch and Justice Clarence Thomas took exception to this qualification, claiming it unnecessarily constricted the application of state funding to religiously affiliated schools.

With Justice Thomas's endorsement, Justice Gorsuch wrote about this qualification, "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. Such a reading would be unreasonable for our cases are 'governed by general principles, rather than ad hoc improvisations.'... And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else."

With this response, Justice Gorsuch carved himself an early spot on the Court as an advocate for school choice and, more specifically, a different reading of the Establishment Clause of the First Amendment, separating church and state. In the process, he has emerged as a fellow traveler of Justice Thomas, wrote Sai Prakash and John Yoo in a June 30 op-ed in The Wall Street Journal.

In his concurrence, Justice Stephen Breyer provided support for Justice Roberts’s opinion in conventional terms. Justice Breyer cited Everson v. Board of Education, a 5-4 decision in 1947 concluding that just as denial of "ordinary police and fire protection" to parochial schools did not comport with the intent of the Establishment Clause, denial of free transportation for students attending parochial schools could not be justified. Justice Breyer wrote that renovation of a playground likewise served the ancillary purpose of improving "the health and safety of children" and nothing more.

Much as the dissenters in Everson claimed that free transportation supplemented the very operation of religiously affiliated schools and thus implicitly sent taxpayer dollars to such schools, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented that the majority opinion constituted a blow to the separation of church and state. Echoing the dissenters in Everson, Justice Sotomayor argued that ancillary and central services are necessarily indistinguishable.

"To hear the Court tell it,” Justice Sotomayor write, “this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

Justice Sotomayor continued, “The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

In connection with this decision, reported The New York Times, the Supreme Court returned two cases to state courts for review, one concerning government funding of tuition at private and parochial schools in Justice Gorsuch’s native state of Colorado and the other, provision of textbooks to private schools from a state lending program in New Mexico. 

Both Colorado and New Mexico have Blaine Amendments to their constitutions, barring state support of religious schools. Yet the same is true of Ohio, whose voucher program in Cleveland was nevertheless supported by the Supreme Court in its 2002 decision Zelman v. Simmons-Harris.  In that 5-4 ruling, the Court concluded that Cleveland’s voucher program did not violate the Establishment Clause on the grounds that aid went to parents, not schools, and that parents could choose secular as well as parochial schools, even though 96 percent of the vouchers were used at parochial schools.

- Samuel E. Abrams, Director, NCSPE, June 30, 2017




Published Friday, Jun. 30, 2017