Will Gorsuch Reshape the First Amendment This Summer?

On just day three of his time on the Supreme Court, Associate Justice Neil Gorsuch will hear arguments in a case that could reshape the landscape of government funding to religious institutions.

Gorsuch's tendency to rule in favor of religiously affiliated groups could play a pivotal role in the Trinity Lutheran decision, especially since the church has framed itself as a victim of state hostility toward religious believers. Eric Thayer/Getty Images

Associate Supreme Court Justice Neil Gorsuch will have been on the job three whole days when he hears arguments in what could be one of the most significant separation of church and state cases to come before the U.S. Supreme Court in decades.

At first glance, Trinity Lutheran Church of Columbia, Inc. v. Comer doesn’t look like much of a case, let alone one that could bust open the barriers preventing direct government funding of religious institutions. But it is, and that is likely why Republicans pushed Gorsuch’s confirmation so aggressively. They wanted him on the bench for a reliable conservative vote in Trinity Lutheran’s favor, and to hopefully bring Justice Anthony Kennedy along with him.

The case, which the Court hears Wednesday, involves a church playground and a Missouri state program that provides grants to help nonprofits buy rubber playground surfaces. The program’s goal is to keep used tires out of state landfills and to upgrade playgrounds—all good, laudable things.

Trinity Lutheran Church applied for, and was denied, a grant to refurbish a playground for a daycare and preschool it runs. When it was denied funds, the church sued, arguing among other things that its exclusion from the program violates the First Amendment’s Free Exercise Clause. According to the complaint, being denied grant funding because it is a church discriminates against religious institutions by denying them access to funding that they argue is secular and widely available, thus punishing them for exercising their faith. According to attorneys for the church, the state has no valid First Amendment reason for the exclusion.

Not so, say attorneys for the State of Missouri, who argue that denying the grant in no way interferes with the church or its members’ ability to worship or even run its daycare as it sees fit. Instead, the attorneys for the state argue, giving the church grant dollars would be a violation of the Establishment Clause, because then government dollars would be directly supporting the church by helping it improve its grounds. Trinity Lutheran can pave its playground however it wants, the state argues. It just can’t do so on the government’s tab, because it is a church and its daycare and preschool programs are part of that institution.

The state also argues that its grant program is not the kind of “generally available public benefit” that would elevate it to the level of constitutional scrutiny argued for by Trinity Lutheran. That strict scrutiny standard views government action that restricts constitutionally protected activity like religious exercise as inherently suspect. In other words, the government has to provide a very good reason for why it is acting to curb a fundamental constitutional right. The attorneys note in their complaint that most applicants are rejected and that the grant program’s funding is limited. Furthermore, the program treats all religious institutions the same, by not including any of them as grant recipients.

The case boils down, ultimately, to what constitutional test courts should use when judging grant programs like Missouri’s that have a secular purpose—in this case lowering environmental impact and upgrading area playgrounds—from which religious institutions like Trinity Lutheran have historically been excluded, because of First Amendment limitations on government funding of religious institutions and programs. How the Roberts Court answers that question could have wide-reaching consequences, particularly if the Court expands the ways in which religious institutions can receive government dollars.

Which brings us back to newly minted Justice Gorsuch, who has a complicated record on religious liberty decisions. His tendency to rule in favor of religiously affiliated groups could play a pivotal role in the Trinity Lutheran decision, especially since the church has framed itself as a victim of state hostility toward religious believers.

The case has the potential to change the very nature of social services funding at a time when religiously affiliated institutions have taken over large areas of the safety-net marketplace, from gobbling up secular hospitals to running nursing homes and childcare facilities. So far the law has been very clear that those institutions are free to exist in that marketplace and provide the services they do. But they cannot expect to have their work entirely subsidized by taxpayers.

But a blurring of the line between private business, religious activity, and government spending can be traced almost directly to Justice Gorsuch and his role in both the Hobby Lobby case while a judge on the Tenth Circuit, as well as the Little Sisters case. In each, Gorsuch laid out the intellectual framework for flipping the script on how courts could approach claims of government infringement on religious rights. Instead of taking a critical but objective look at the nature of the sincerity of the connection between the alleged government imposition and the actual religious practice at issue, Gorsuch’s opinions suggested courts should presume both the religious beliefs are sincere and that the connection to the plaintiffs’ religious exercise is real and burdensome. The Roberts Court was, in the context of abortion rights, already sympathetic to this line of thinking when it ruled on behalf of the “plump grandmas” protesting clinics and harassing patients to strike down a Massachusetts buffer zone law. Gorsuch’s line of reasoning could take the Supreme Court even further down that path.

If a secular, for-profit craft store can be excused from incurring a regulatory fine on the basis of a religious objection to birth control, as the Hobby Lobby opinion ruled, wouldn’t the inverse logic work for conservatives on the bench? If the government can’t punish secular businesses for launching religious objections to regulations, as was the case in Hobby Lobby, how can the government “punish” religious institutions by excluding them from certain spending programs that those religious institutions claim do not go to religious practice?

In other words, what should stop a state from directly funding a religious group that also provides secular services? Why can’t a church get a government grant to improve its facilities?

These questions are seductively simple, as are the answers. The First Amendment’s Establishment Clause and the case law interpreting it says that a state government cannot use its spending power to favor one religion over another, either directly or indirectly.

But what the Hobby Lobby decision made clear is that when the line between religion and government spending is re-framed as the state “punishing” believers by enforcing its laws, the Roberts Court will likely side with the religious claimants.

I’ve written about Gorsuch as a key actor in pushing corporate religious rights under Hobby Lobby, and his record here is clear. If there is a way to both insulate corporations and find a way to expand the reach of evangelicalism into popular culture, then Gorsuch is the legal brains to pave that way. Will that charming personality of his, though, be enough to sway Kennedy, who is likely the critical fifth vote the conservatives need to get a win here?

We’ll know sometime this summer when the Court releases its opinion.