Jurisprudence

Brett Kavanaugh Shows How Eager He Is to Tear Down the Wall Between Church and State

Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address on Feb. 5.
Supreme Court Justices Neil Gorsuch and Brett Kavanaugh attend the State of the Union address on Feb. 5 in Washington.
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Does the Constitution compel state and local governments to subsidize religion? That question might seem preposterous, since the First Amendment’s Establishment Clause prohibits the government from funding religious exercise and limits its ability to fund religious facilities. Yet in 2017, the U.S. Supreme Court flipped the First Amendment on its head by ruling, for the first time ever, that the Constitution sometimes requires the government to provide public funds directly to a church. Its decision in Trinity Lutheran v. Comer blew a chunk out of the wall between church and state. And on Monday, Justice Brett Kavanaugh announced his intention to demolish the remainder of that wall by invalidating laws that bar government subsidization of religion.

In fairness to Kavanaugh, this Supreme Court was already hostile to the Establishment Clause before he joined. That much was clear from its Trinity Lutheran decision, an assault on religious freedom that masqueraded as a defense of religious equality. The case involved a Missouri church, Trinity Lutheran, that sought state funds to resurface a playground used for its day care and preschool programs. Missouri rejected its bid due to a provision of the state constitution that bars the use of taxpayer money “in aid of any church, sect, or denomination of religion.” Trinity Lutheran sued, alleging a violation of its rights under the First Amendment’s Free Exercise Clause. By discriminating on the basis of its religious identity, the church argued, Missouri had infringed upon its free exercise of religion.

The Supreme Court agreed in a 7–2 ruling. Chief Justice John Roberts’ majority opinion held that Missouri could not disqualify houses of worship from a “public benefit solely because of their religious character.” In a furious dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, accused the majority of “dismantl[ing] a core protection for religious freedom.” The court, she wrote, “discounts centuries of history and jeopardizes the government’s ability to remain secular.” For decades, the court had recognized that the Establishment Clause forbids “direct government funding of religious institutions” to protect all Americans’ “freedom of conscience.” Now the majority insisted that, in fact, the Free Exercise Clause sometimes demands such subsidization of religion.

In a footnote to his opinion, Roberts claimed that Trinity Lutheran involved only “playground resurfacing” and did not “address religious uses of funding or other forms of discrimination.” If that were true, the decision would be troubling enough; after all, Trinity Lutheran used its playground to help teach “a Christian world view to children,” and the public funds used to resurface it would invariably further its “religious mission.” But Roberts’ footnote was plainly nonsense. How could the sweeping principle he announced be limited to playgrounds? The court had “all but invalidated” the constitutional provisions of 39 states that restricted public aid to religion, Sotomayor wrote. Its ruling obliterated states’ ability to separate “the public treasury” from “religious coffers.”

On Monday, Kavanaugh vindicated Sotomayor’s fears by seizing upon a case called Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation. In Morris County, 12 churches sought to help restore their facilities with historic preservation funds provided by the county. But the New Jersey Constitution, like the Missouri Constitution, bars direct aid to religion, and a taxpayer, represented by FFRF, sued to enforce this provision. The churches argued that, under Trinity Lutheran, this prohibition violates the Free Exercise Clause. But the New Jersey Supreme Court unanimously disagreed, noting that “the public funds awarded in this case” would go toward “religious uses.” Indeed, the funds in question would help the church “conduct worship services” and “repair religious imagery.” New Jersey taxpayers, the court held, cannot possibly be obligated to subsidize the literal exercise of religion.

Kavanaugh disagreed. Although the Supreme Court declined to hear Morris County, Kavanaugh wrote separately to condemn New Jersey’s “pure discrimination against religion.” In his 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.” Eventually, Kavanaugh wrote, the court should affirm the “bedrock principle of religious equality” by striking down laws that restrict states’ ability to preserve houses of worship with taxpayer dollars. Justices Samuel Alito and Neil Gorsuch joined his opinion.

If Kavanaugh, Alito, and Gorsuch are so furious, why didn’t they vote to take Morris County and reverse the New Jersey Supreme Court? Kavanaugh wrote that the precise “scope of the program” is in dispute. And this uncertainty “could hamper our analysis” of the church’s “religious discrimination claim.”

But that isn’t true: The parties agreed on the facts from the start, as the New Jersey Supreme Court’s decision notes. Andrew Seidel, an attorney with the Freedom From Religions Foundation who litigated this case, told me there was another reason Kavanaugh may have shied away from the case: Morris County’s program flagrantly favored churches, rendering most businesses and nonprofits ineligible for historic preservation funds. The historic preservation program was gerrymandered to aid religion. And Kavanaugh may have recognized that this fact cast a shadow on the optics of the case. The churches were colluding with the county to demand a handout, not competing on equal footing with secular groups.

And so, on Monday, Kavanaugh declined to seize upon Morris County to further dismantle the Establishment Clause. Still, the wrecking ball looms. There is no obvious limit to the principle enshrined by Trinity Lutheran. The New Mexico Supreme Court has already used it to let the state fund textbooks for religious schools. It would seem to open school voucher programs to parochial institutions. And once Kavanaugh gets the right case, he will deploy Trinity Lutheran to open historic preservation funds to houses of worship. The Supreme Court is rewriting the First Amendment by creating a constitutional right to taxpayer-subsidized religion.