Category Archives: Constitutional Law

Attorney General Session’s “Religious Liberty Task Force”: DOJ Evangelists for the Religious Right

Cross-posted to Medium.com
On Monday, July 30th, the Department of Justice (DOJ) held a “Religious Liberty Summit” at which Attorney General Jeff Sessions announced that the Department would be developing a “Religious Liberty Task Force.” Attorney General Sessions explained that the task force “will help the department fully implement our religious liberty guidance” — referencing a DOJ guidance document on “Principles of Religious Liberty” issued in October of 2017 — “by ensuring that all Justice Department components… are holding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations.”

Attorney General Sessions notes that this is the “next step” for the DOJ and the Trump administration to ensure the application of the “religious liberty guidance” issued by the Department of Justice in the fall of 2017. The guidance document that the task force is charged with implementing was promulgated in accordance with President Trump’s “Executive Order Promoting Free Speech and Religious Liberty.” President Trump signed the Executive Order in question in a ceremony on May 4th, 2017, the “National Day of Prayer,” in the White House Rose Garden. The guidance document, “Principles of Religious Liberty” was issued on October 7, 2017, from Attorney General Sessions in a Memorandum for all Executive Departments and Agencies, available here.

While “religious liberty guidance” and the creation of a “Religious Liberty Task Force” may sound innocuous, they are far from it; the guidelines speak to an interpretation of religious liberty that is frequently used by the Religious Right to deny and undercut the rights of marginalized individuals in the United States. In a statement released by the Public Rights/Private Conscience Project on the “religious liberty guidance” last fall, our scholars analyzed and characterized its edicts as such:

This document… misinterpret[s] the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the health, safety and equality rights of women, LGBTQ[+] people, people of color, and religious minorities.

The “Principles of Religious Liberty” memorandum issued by the Department of Justice in October 2017 contains several examples of how the rhetoric of “religious liberty” has been mobilized by the Christian Right to enable individuals and businesses to deny rights and services to persons based on their religious beliefs. This insidious tactic undercuts equity and equality measures guaranteed by the constitution and a wide range of national and state laws. Cases such as Masterpiece Cakeshop — wherein baker Jack Phillips refused to bake a cake for the wedding of a same-sex couple on the basis that doing so would unduly burden his religious beliefs– have raised the visibility of this issue. What’s at stake is far more serious than cake, however: Similar cases include that of EEOC v. Harris, in which a funeral home fired Aimee Stephens, a transgender employee, for expressing her gender identity through clothing. The Funeral home asserted that Stephens’ gender expression was in violation of the Funeral home’s “closely held religious beliefs.” While the Sixth Circuit Court of Appeals ruled in favor of the Equal Employment Commission and Aimee Stephens, a petition has been filed for the case to be heard by the Supreme Court.

The Public Rights/Private Conscience Project has written extensively on the DOJ guidance in the DOJ Memorandum on “Principles of Religious Liberty,” as well as President Trump’s “Executive Order Promoting Free Speech and Religious Liberty,” which instructed Attorney General Sessions to develop the guidance. Our analyses have demonstrated how the Trump Administration and the Attorney General have sought to coopt the meaning of “religious freedom” and “religious liberty” in order to privilege certain conservative religious views as a form of white Christian supremacy:

In April of this year, the Public Rights/Private Conscience Project co-authored a report with the Center for American Progress, “Religious Liberty for a Select Few.” The report, available here, highlights how the actions of the Justice Department enable and promote discrimination in and by the Federal Government using the tools of the Justice Department and the Executive Branch.

The report, “Religious Liberty for a Select Few” follows a series of earlier works produced by the Public Rights/Private Conscience Project, which address concerns about how the Trump Administration is using a limited vision of “religious liberty” to promote a specific agenda. These works are outlined below:

· In October 2017, the Public Rights/Private Conscience Project published a statement critiquing Attorney General Sessions “Principles of Religious Liberty” issued in a DOJ Memorandum for all Executive Departments and Agencies on October 7th, 2017.

· In July 2017, Ashe McGovern, Legislative and Policy Director of the Public Rights/Private Conscience Project, wrote on the potential harms of the — at the time — anticipated guidance on religious freedom from Attorney General Sessions, in a blog post, “Trump’s ‘Religious Freedom’ Guidance Likely Imminent and Harmful to LGBTQ Communities and Others.”

· In May 2017, Elizabeth Reiner Platt, Director of the Public Rights/Private Conscience Project, wrote a blog post addressing President Trump’s Executive Order on Religious Liberty and Freedom of Speech titled, “’Religious Liberty’ Executive Order Will Limit, Not Enhance, Religious Freedom.”

· In May 2017, the Public Rights/Private Conscience Project released a joint statement with the Council on American Islamic Relations addressing concerns about the potential impacts of President Trump’s “Executive Order Promoting Free Speech and Religious Liberty” on religious minorities, available here.

· In January 2017, the Public Rights/Private Conscience Project published “Church, State, and the Trump Administration,” a report focusing on the promises of the Trump campaign related to faith and religion, and the actions undertaken during President Trump’s early tenure in regards to faith and the separation of Church and State.

The DOJ’s “Religious Liberty Task Force” will no doubt continue the administration’s work of advancing particular conservative religious beliefs about sexual health and autonomy, intimate and family partnerships, and pregnancy under the guise of religious liberty. This so-called “freedom” comes at a steep price, however, particularly for women, sexual and gender minorities, people of color, and religious minorities.


A full list of the Public Rights/Private Conscience Project’s writing on the way the Trump Administration and Attorney General Sessions actions regarding “Religious Freedom” and “Religious Liberty” follows below:

Report: Religious Liberty for a Select Few: The Justice Department Is Promoting Discrimination Across the Federal Government
Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine Franke, Claire Markham
April 3, 2018
https://www.americanprogress.org/issues/lgbt/reports/2018/04/03/448773/religious-liberty-select/

Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights
The Public Rights/Private Conscience Project
October 6, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/10/06/columbia-law-experts-denounce-doj-religious-liberty-guidance-as-attack-on-religious-liberty-and-fundamental-equality-rights/

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others
Ashe McGovern
July 20, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/07/20/religiousfreedomharmslgbtq/

Joint Statement by CAIR and PRPCP on President Trump’s EO on “Religious Liberty
The Council on American-Islamic Relations of New York and Columbia Law School’s Public Rights/Private Conscience Project
May 15, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/15/joint-statement-by-cair-and-prpcp-on-president-trumps-eo-on-religious-liberty/

“Religious Liberty” Executive Order Will Limit, Not Enhance, Religious Freedom
Elizabeth Reiner Platt
May 4, 2017
http://blogs.law.columbia.edu/publicrightsprivateconscience/2017/05/04/religious-liberty-executive-order-will-limit-not-enhance-religious-freedom/

Church, State, and the Trump Administration
The Public Rights/Private Conscience Project
January 30, 2017
https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/PRPCP/prpcp_trump_church_state.pdf

Columbia Law Scholars answer key questions regarding SCOTUS Decision in Masterpiece Cakeshop

Monday, June 4, 2018

After the U.S. Supreme Court agreed to hear the case of a Colorado baker who refused to make a cake for the marriage of a gay couple, nearly 100 “friend of the court briefs” were filed by groups on every side of the political and religious spectrum, including the Public Rights/Private Conscience Project at Columbia Law School

Professor Katherine Franke is the Sulzbacher Professor of Law, Gender and Sexuality Studies at Columbia University. Elizabeth Reiner Platt is the Director of the Public Rights/Private Conscience Project. Below, they answer 5 key questions regarding the judgment the Supreme Court of the United States delivered this morning in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

A version of this Q & A may be accessed from Columbia University News, here.


Q: How did the Supreme Court decide the Masterpiece Cakeshop case today?

A: Justice Kennedy ruled for a 7-2 majority that principles of religious liberty must be harmonized with principles of equality.  The Court’s ruling is quite narrow, actually, turning on the fact that some members of the Colorado Civil Rights Commission (the body that ruled on the case in the first instance) made statements that the Court thought demonstrated hostility toward religion.  So Justice Kennedy framed the issue as one of state-based discrimination against people who hold particular religious views, not as about the rights of same-sex couples or LGBT rights more generally.

Q: What should we make of the way the Court framed the issue?

A: Many people were disappointed to see the Court rule in favor of Jack Phillips, the Christian baker who refused to bake a wedding cake for two men because of his religious beliefs. They see the Court’s opinion as a defeat for the rights of LGBTQ people.  It’s important to recognize, however, that the opinion does not actually limit antidiscrimination law. The Court explained, “It is a general rule that [faith based] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

In fact, the opinion contains soaring language recognizing the importance of gay rights: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”

Q: You wrote a “friend of the Court” brief in the case, does today’s decision reflect the arguments you made?

A: The Public Rights/Private Conscience Project and Muslim Advocates wrote a brief in this case on behalf of 15 religious minority and civil rights groups, arguing that religious liberty principles must be harmonized with equality principles, and that the rights of religious objectors find their limit when they undermine fundamentally important equality principles, such as Colorado’s anti-discrimination law.  We took the position that these are mutually reinforcing values, and we are pleased to see that the Court’s decision in Masterpiece Cakeshop embraces this approach, despite setting aside the ruling against Jack Phillips.

For example, the Court found that while a religious exemption allowing clergy to decline to perform a same-sex wedding may be appropriate “as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

Q: There are many similar cases making their way to the Supreme Court, where business owners have sought a religious exemption from complying with anti-discrimination laws.  How does today’s decision in Masterpiece Cakeshop affect those other cases?

A: None of those other cases include evidence of any bias against faith-based objectors, as was the case in Masterpiece Cakeshop.  So the big questions these cases raise— can a person’s sincerely held religious beliefs be used to avoid compliance with anti-discrimination laws— remains unanswered.  There were, however, some important signs in Justice Kennedy’s decision today that point in the direction that religious objectors may not win in those cases.  The Court cited approvingly a case from the 1960s that found that a restaurant owner could not deny service to African Americans even if he had a sincerely held religious reason for doing so.  So that principle remains as an important limit on religious liberty rights in contexts where overarching equality principles would be undermined by the overly broad deference to religion.

Q: What’s at stake in the tension between religious liberty and LGBTQ equality?

A:  There are two very radical ideas lying behind Jack Phillips’ legal claim here – both of which originate with his lawyers, the Alliance Defending Freedom.  The first is to establish the idea that some constitutional rights are more important than others.  In their view religious liberty rights are more fundamental than any other rights, and thus should occupy the top tier of constitutional protection.  The rights of LGBT people, women, people of color and others, in their view, should be seen as second tier, lower priority rights, and should yield when in conflict with religious liberty.  This approach to constitutional law derives from something we call “natural law” – that God’s law is supreme and no man-made law can be superior to God’s law.  This amounts to a radical theocratization of the constitution, a document that was intended to be an adamantly secular social contract.  The second idea is one that ideological conservatives have been committed to for generations: that the government cannot, indeed may not, tell business owners who they can serve and how they can run their businesses.  These folks objected to civil rights laws that prohibited race discrimination by businesses in the 1960s and have never accepted the fact that a business must serve all people, regardless of race, religion or sexual orientation, for instance.  They are using religion-based resistance to same-sex marriage in order to weaken the larger national commitment to enforcing non-discrimination laws in business settings.  In this sense, the Masterpiece Cakeshop case is the logical next step after the Hobby Lobby case, where a business owner objected to the federal government mandating the kind of employee benefits it had to provide.

MEDIA ADVISORY: Columbia Law School Scholars Submit Comment on Proposed HHS Rule

SUBJECT: HHS Rule Fails to Protect the Conscience of All Health Care Providers | Proposed Rule Ignores Providers Who Support Reproductive Health Care

FROM: The Public Rights/Private Conscience Project (PRPCP), Columbia Law School

CONTENT: “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”

CONTACTS:
Elizabeth Boylan, 212–854–0167, eboyla@law.columbia.edu
Elizabeth Reiner Platt, 212–854–8079, ep2801@columbia.edu


New York, NY, March 27, 2018 — In medical facilities across the country, doctors whose conscience would require them to perform a sterilization on a patient who requests one, offer truthful information about accessing abortion services, or provide comprehensive LGBTQ+ health care are forbidden from doing so by their employer. The conscience of such medical providers is entirely ignored by the U.S. Department of Health and Human Service’s (HHS) recently proposed rule that purports to “ensure that persons or entities” providing health care “are not subjected to certain practices or policies that violate conscience, coerce, or discriminate.” As explained in a comment submitted today by the Columbia Law School Public Rights/Private Conscience Project (PRPCP), HHS’s proposed rule provides conscience protection only to those whose religious views match those of the administration. The rule is therefore legally suspect.

The HHS rule would enact sweeping protections for medical providers, health care facilities, insurance plans, and even employers who believe that abortion, sterilization, and other healthcare services are morally wrong. In contrast, it provides only extremely limited protections to those whose religious or moral beliefs lead them to offer their patients the full range of sexual and reproductive health care.

There are many such providers; studies and articles have described a wide range of conflicts between physicians who wish to provide reproductive health care to patients, especially emergency care, and faith-based medical facilities that prohibit this care. Furthermore, abortion providers frequently speak of their practice in religious or moral terms. To provide just a few examples, Dr. George Tiller referred to his work providing abortion care as a “ministry.” Dr. Sara Imershein has described providing abortion care as a “mitzvah” and said that “No one should be able to step in the way of what I consider to be my moral obligation.” Dr. LeRory Carhart stated in an interview, “I think what I’m doing is because of God, not in spite of God.”

“Under the proposed rule, a doctor who refuses to provide care that is medically indicated and requested by a patient is protected, while a doctor who does provide this care in accordance with her conscience can be fired,” said Elizabeth Reiner Platt, Director of PRPCP. “Not only does this scheme fail to ensure patient health, it also fails to safeguard the very right it claims to defend — the freedom of conscience.”


The Public Rights/Private Conscience Project

The Public Rights/Private Conscience Project’s mission is to bring legal academic expertise to bear on the multiple contexts in which religious liberty rights conflict with or undermine other fundamental rights to equality and liberty. We undertake approaches to the developing law of religion that both respects the importance of religious liberty and recognizes the ways in which too broad an accommodation of these rights threatens Establishment Clause violations and can unsettle a proper balance with other competing fundamental rights. Our work takes the form of legal research and scholarship, public policy interventions, advocacy support, and academic and media publications.

To learn more, please visit us at http://www.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project

Media Advisory – Dignity Denied: Religious Exemptions and LGBT Elders

Dignity Denied: Religious Exemptions and LGBT Elders

Media Advisory: The Public Rights/Private Conscience Project joins SAGE and the Movement Advancement Project announce the release of a groundbreaking report entitled, Dignity Denied: Religious Liberties and Elder Care, on the negative impacts Religious exemption laws and policies have on elder LGBT persons in the United States, and how these policies put elder LGBT persons at risk of discrimination.

Date:
Friday, December 15, 2017
12:00 pm – 2:00 pm

Location:
Union Theological Seminary
Columbia University in the City of New York
3041 Broadway (at West 121 Street), Room 207
New York, NY 10027

Press Contact:
Liz Boylan
Associate Director, Center for Gender & Sexuality Law, Columbia Law School
212.854.0167 | eboyla@law.columbia.edu.

[NEW YORK] The Public Rights/Private Conscience Project is thrilled to join SAGE, the nation’s largest and oldest organization dedicated to improving the lives of LGBT elders, and the Movement Advancement Project in announcing the release of a groundbreaking report on how Religious exemption laws and policies have a disproportionately negative impact on elder LGBT persons in the United States.

The report will be launched with a panel discussion and luncheon on Friday, December 15th at Columbia University’s Union Theological Seminary.  The program will detail the increased risks LGBT older adults face as a result of recent religious exemption laws and policies that enable a “right to discriminate.”

This program is free and open to the public.  Please RSVP via: utsnyc.edu/SAGE

  • Alex Sheldon, Research Analyst, The Movement Advancement Project
  • Audrey Weiner, President and CEO, The New Jewish Home
  • Carmelyn P. Malalis, Chair and Commissioner, New York City Commission on Human Rights
  • Fred Davie, Executive Vice President, Union Theological Seminary
  • Jonathan Soto, NYC Mayor’s Office: Executive Director of the Center for Faith and Community Partnerships
  • Katherine Franke, Professor of Law and Faculty Director of the Public Rights/Private Conscience Project, Columbia Law School
  • Michael Adams, CEO, SAGE
  • Rose Saxe, Senior Staff Attorney, LGBT & HIV Project, American Civil Liberties Union
  • Sandy Warshaw, SAGE Constituent

“This report, and the amicus brief SAGE filed in the Masterpiece Cake case, clearly demonstrate that personal religious beliefs should never be a license to discriminate against LGBT people or anybody else,” says Michael Adams, CEO of SAGE. “That’s why we are bringing together aging experts, religious leaders, and our elders, to expose the dangers that so-called “religious exemptions” pose for LGBT elders who need care and services. We must not allow the doors of a nursing home or a critical care provider to slam in LGBT elders’ faces just because of who they are and whom they love.”

Trump’s “Religious Freedom” Guidance Likely Imminent and Harmful to LGBTQ Communities and Others

Cross-posted on Medium.

Last week, Attorney General Jeff Sessions gave a closed-press speech at a summit hosted by the Alliance Defending Freedom (ADF), a group that has notoriously fought to undermine LGBTQ and reproductive rights for years under the guise of protecting religious freedom. Among other concerning statements, Sessions promised that he would soon issue guidance for all federal agencies to implement President Trump’s recently enacted “religious freedom” executive order:

The department is finalizing this guidance, and I will soon issue it. The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason. That is a demanding standard, and it’s the law of the land. We will follow it just as faithfully as we follow every other federal law. If we’re going to ensure that religious liberty is adequately protected and our country remains free, then we must ensure that RFRA is followed.

Given Sessions’ skewed prioritization of some, but not all, “religious liberty” rights over other fundamental equality guarantees under the Constitution, there is good reason to be concerned about the potential impact on LGBTQ and others, particularly Muslim communities, women, people of color, and those seeking access to reproductive healthcare.

As we discussed in our report Church, State and the Trump Administration, before taking office, Sessions made a career fighting against justice and equality for marginalized communities, including LGBTQ communities. While in the Senate, he voted against the Employment Non-Discrimination Act (ENDA), which would have protected workers nationwide from discrimination on the basis of sexual orientation. He called the Supreme Court’s decision in Obergefell v. Hodges, which found that the Fourteenth Amendment guarantees a right to marry for same-sex couples, “unconstitutional,” and “beyond what [he] considers to be the realm of reality.” He has also publicly opposed protecting LGBTQ people in federal hate crimes legislation and the Violence Against Women Act, voting against both bills while in the Senate. And when the reauthorization of the Runaway and Homeless Youth Act came up for a vote, he opposed that too, claiming that explicit protections for vulnerable LGBTQ youth meant it “could have discriminated against faith-based organizations.”

Furthermore, Sessions supported the First Amendment Defense Act (FADA) as an original co-sponsor. FADA would forbid the federal government from enforcing a wide range of health, benefits, and antidiscrimination laws against individuals and businesses who act on “a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” This could lead to sweeping discrimination against LGBTQ people and anyone who has had sex outside of a different-sex marriage, including unmarried pregnant and parenting women. As we’ve noted in a previous report, these types of exemptions have a serious and disproportionate impact on women and pregnant people of color.

Although no information has been leaked about the pending guidance, Trump’s previously leaked Executive Order, which was significantly longer than the one he ultimately issued, may provide some insight into what the guidance may prioritize. As we discussed in a report focusing on the potential consequences of the leaked Executive Order, this could include a range of harmful outcomes, including broad exemptions that would allow private and nonprofit organizations that contract with the federal government to violate federal civil rights and nondiscrimination laws in providing social services, educational opportunities, healthcare, employment or other services—with impunity.

If Sessions’ actions in the Department of Justice are any indication, the guidance is likely to create broad opportunities for agencies across the federal government to roll back Obama-era civil rights protections and other important constitutional guarantees, using “religious freedom” as a cover.

 

What’s So Troubling About Funding a Playground? How Trinity Lutheran Undermines the First Amendment

Cross-posted to ReligionDispatches and Medium.

On Monday, the Supreme Court took a dramatically new approach to the First Amendment, though you wouldn’t have known it from reading the brief, oversimplified opinion. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court held that—at least in some circumstances—the Free Exercise Clause of the First Amendment requires governments to provide taxpayer funds to churches. This newfound requirement is something the dissent argued should, in fact, be prohibited under the First Amendment’s Establishment Clause.

I have previously written about the facts of Trinity Lutheran, as has RD, but they warrant a brief revisiting here. A Missouri state program offered grants for a limited number of nonprofit schools and daycares to purchase rubber playground surfaces made from recycled tires. Prospective grantees were evaluated and selected based on a number of factors, including poverty level of the surrounding area and their willingness to generate media exposure for Missouri. In 2012, Trinity Lutheran, a Missouri Synod congregation, applied for the grant to renovate the playground of a preschool owned and operated by the church. While it ranked highly, Trinity Lutheran was denied the grant because of a department policy that made houses of worship ineligible for funds. Upon learning the reason for their denial, Trinity Lutheran sued, arguing that the department policy violated their religious rights.

Typically, First Amendment cases involving government funding of religious organizations present Establishment Clause questions—with plaintiffs arguing that the state is prohibited from providing taxpayer money to a church. In fact, the Court has long held that it is unconstitutional for governments to directly subsidize religious activities. Trinity Lutheran, in contrast, asked whether the denial of funds to houses of worship may also be unconstitutional.

Shockingly, the court answered in the affirmative, finding that the Missouri policy violated Trinity Lutheran’s free exercise rights by forcing the church to choose between its religious identity and participation in a government benefit program. In an opinion by Chief Justice Roberts, the Court held “the Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character… such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.” The Court further held that Missouri’s stated reason for the policy—to avoid potential Establishment Clause violations—was insufficient.

The Court’s opinion stands in stark opposition to earlier religious funding decisions, and especially its 2004 opinion in Locke v. Davey. In Locke, the Court upheld a state scholarship program that prohibited recipients from using the funds to pursue a degree in devotional theology. The Court attempted to distinguish Trinity Lutheran from Locke by relying on a distinction between religious identity and religious activities. It explained, “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

How government agencies administering grant programs are expected to distinguish between a house of worship’s religious identity and its religious activities is a spectacularly difficult (if not impossible) task that’s entirely ignored by the Court. Making such a distinction is now constitutionally essential, however, as programs must navigate between not funding religious activities, lest they violate the Establishment Clause, and not “discriminating” against religious institutions, lest they violate the Free Exercise Clause. Previously, state programs could safely avoid such perilous questions by simply declining to fund houses of worship. Trinity Lutheran throws such policies into question—although the scope of the ruling is unclear. (More on that later.)

Both Justice Gorsuch in concurrence and Justice Sotomayor in dissent criticized the majority’s attempt to create a line between religious identity and activities, though they ultimately arrive at opposing conclusions. Gorsuch asked, “Can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? Or was it a religious student who wanted the necessary education for his chosen vocation?).”

Similarly, in her Trinity Lutheran dissent, Sotomayor wrote, “the Church has a religious mission, one that it pursues through the [preschool]. The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.” But while Gorsuch’s opinion suggests that he would support even direct state subsidization of religious activities, Sotomayor argued that directly subsidizing a house of worship—even for ostensibly non-religious expenses such as playground surfaces—is proscribed by the Establishment Clause.

It’s notable that the Court has previously declined to require religious organizations to distinguish between their religious and secular activities. A 1987 decision, Corporation of the Presiding Bishop v. Amos, involved an Establishment Clause challenge to a religious exemption that permitted religious organizations to hire employees based on their faith, even for secular jobs such as janitorial work. The plaintiff in that case argued that while the exemption was justified for employees with religious duties, it was unconstitutional when applied to employees with purely secular jobs.

The Court disagreed, finding that creating such a constitutional line would be untenable. It held, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one.” Thus, the Amos Court declined to adopt a constitutional bright line between religious and secular activities in order to grant religious organizations advantageous exemptions. However in Trinity Lutheran, it relies on precisely such a distinction in order to permit (indeed, require) state funding of houses of worship.

As a more general matter, it is suspect that the majority opinion decries treating houses of worship as different from secular organizations, when the Court has repeatedly relied on this difference to grant exemptions to faith-based organizations that are unavailable to secular nonprofits. As Justice Sotomayor explains, “the government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome.”

The only saving grace (so to speak) of the opinion is buried in a footnote, though how lower courts will interpret both its weight and substance is unclear. The footnote states, “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.” Two of the six justices who signed the majority opinion—Gorsuch and Thomas—dissented from the footnote, though Justice Breyer, who concurred only in the judgment, appears to support it.

More importantly, it’s far from clear how literally to interpret the footnote’s apparent attempt to confine the decision exclusively to programs involving playground resurfacing. Justice Gorsuch explained in his concurrence that lower courts might (in his view, 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 . . . the Court’s opinion.” While this narrow reading of the case would limit the damage it inflicts on the Establishment Clause, it seems likely that at least some courts will interpret the decision far more broadly, and sanction a variety of programs providing direct funding to houses of worship.

Regardless of how the footnote is interpreted, the Court’s opinion in Trinity Lutheran demonstrates a fundamental misunderstanding of the purpose of the religion clauses, and effectively ignores the danger of using public coffers to subsidize houses of worship.  The majority describes this as a case about religious discrimination, which demonstrates how successful the religious right has been at rebranding nearly any attempt to enforce the Establishment Clause as a form of religious persecution. Declining to divert public money to churches has long been considered necessary to protect the individual right of conscience of the citizenry. Far from being discriminatory, separation of church and state is intended to ensure that individuals may choose to adhere to any or no religious beliefs free from coercion, and that the church itself is protected from government intrusion. The majority opinion ignores the long history of and important justifications for prohibiting state subsidization of houses of worship. Hopefully, its damage will be confined to the unusually sympathetic facts of this case.