Amicus Curiae Brief — Trinity Lutheran Church of Columbia, Inc. v. Pauley, 136 S. Ct. 891 (2016) (No. 15-577)

FILED

| 21am

No. 15-577

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,

Petitioner,

Vv.

SARA PARKER PAULEY, IN HER OFFICIAL CAPACITY,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR THE CATO INSTITUTE

AS AMICUS CURIAEIN SUPPORT OF

PETITIONER

ILYA SHAPIRO

Counsel of Record

JAYME WEBER

Cato Institute

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

jweber@cato.org

Counsel for the Amicus Curiae

a IS,

QUESTION PRESENTED

Whether the exclusion of churches from an other-

wise neutral and secular aid program violates the

Free Exercise, Establishment, or Equal Protection

Clauses of the First Amendment when the state has

no valid Establishment Clause concern in preventing

access to the program.

TABLE OF CONTENTS

Page

so _ | I a i

OE EE ED rccicccncscccccesecesscnssecocssesoess iil

INTEREST OF THE AMICUS CURIAE..................... l

INTRODUCTION AND SUMMARY OF

i nsecionnotucnsesoureecs |

ye a 3

I. MISSOURI’S BLAINE AMENDMENT

CANNOT BE DIVORCED FROM ITS

ANTECEDENTS IN RELIGIOUS BIGOTRY....... 3

Il. MISSOURI’S DISCRIMINATION AGAINST

TRINITY LUTHERAN VIOLATES BOTH

RELIGION CLAUSES, PLUS THE EQUAL

EY SE cccesescccocescnsssesecesecessoeneeees 5

A. Missouri's Refusal to Award a Generally

Available Benefit to Trinity Lutheran

Violates Both Religion Clauses ....................... 7

1. Withholding the Grant Violates the Free

a cceuimnmatuaeonoes 7

2. Withholding the Grant Violates the

Establishment Clause. .................0.cccccc00ee0es 10

B. It Also Violates the Equal Protection

EET 13

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

Se Ta 11

Am. Sugar Ref. Co. v. Louisiana,

Il 13

Bd. of Ed. v. Mergens,

a cciesielaiedia 11

Bd. of Educ. v. Allen,

Te wea 15

Bd. of Educ. v. Grumet,

CDRA 11

Burlington N. R.R. Co. v. Ford,

SER es 13

Capitol Square Rev. & Advisory Bd. v. Pinette,

4 | CRS aoa m en cel eS 11

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1998) 000... ecccceececeeeeeeee 7,8

City of New Orleans v. Dukes,

A 6,13

Edwards v. Aguillard,

ES cee ee 11

Employment Division v. Smith,

A 7, 8, 9, 14

Everson v. Bd. of Educ.,

re CO 5, 7, 10, 15

Fisher v. Univ. of Tex. at Austin,

es 16

lv

Hobbie v. Unemployment Appeals Comm.,

a ipesoniianails 14

Kotterman v. Killian,

ETE NO See 4

Lemon v. Kurtzman,

ERE ae ene 10,11

Locke v. Davey,

I a ldieerenmmneniin 2,12

McDaniel v. Paty,

Sy III nccccnictcnsssdizanensehesnenes 6, 7, 8-9, 12

Missouri ex rel. Gaines v. Canada,

ne

Mitchell v. Helms,

I a niiiesiatinling 3, 4,17

Nat'l Endowment for the Arts v. Finley,

EE ee 10

Niemotko v. Maryland,

Ic meeeeieiaail 13

Palmer v. Thompson,

TTT CAE LT TEE 19, 20

Reed v. Reed,

8, eo neseasromoate 13

Roemer v. Bd. of Pub. Works of Md.,

ke LE AES LR Nee Rae 18

Sch. Dist. of Abington Twp. v. Schempp,

iL oeigubdeianianniiiie 8

Sherbert v. Verner,

I eae 8, 9,14

Strauder v. Virginia,

ET ee nen aoe Ee 15

Thomas v. Review Bd.,

EE a ee eae 14

Trinity Lutheran Church of Columbia, Inc. v. Pauley,

ON I, I cticnscntcneccncescicnscacsacsese 19

United States v. Armstrong,

ES er 13

United States v. Lee,

a sideminioiemeueanl 8

U.S. Dep't of Agric. v. Moreno,

aie 13

Wallace v. Jaffree,

AEE Re ee REET eo 11

Walz v. Tax Comm'n of the City of New York,

i leichhermigdiunipbiian 2,14

Widmar v. Vincent,

a csasttbiinmiinieias 17, 18

Yick Wo v. Hopkins,

TR 15

Zelman v. Simmons-Harris,

Ee Ce aS 5

Zobrest v. Catalina Foothills School District,

a iiabacentmabidnnnide 18, 19

Other Authorities

Brief in Opposition to Petition for Certiorari,

Trinity Lutheran Church of Columbia, Inc. v.

I I I iain aia dtaniete ciel etiiiatmns 18

Douglas Laycock, Theology Scholarships, the

Pledge of Allegiance, and Religious Liberty:

Avoiding the Extremes but Missing the Liberty,

DUD TEMG. Ee, BOOV. BEG CaIOE) cccccccccccesscsccccesccecsscccce: 9

John C. Jeffries, Jr. and James E. Ryan,

A Political History of the Establishment Clause,

100 Mich. L. Rev. 279 (2001) ........c.cc0cecseseeeeeseeeeeeees 5

Kenneth C. Davis, America’s True History of

Religious Tolerance, Smithsonian Magazine

(Oct. 2010), http://www.smithsonianmag.com/

history/americas-true-history-of-religious-

tolerance-61312684/?no-ist ................66..22cceeeeeeees 6-7

Letter from Thomas Jefferson, U.S. President, to

Nehemiah Dodge, Ephraim Robbins & Stephen

S. Nelson, Comm. of the Danbury Baptist Ass’n

in the State of Conn. (Jan. 1, 1802) (on file with

the Library of Congress) ..............ccccsecscseeeeseeseeeeeeees 1

Petition for Certiorari, Trinity Lutheran Church

of Columbia, Inc. v. Pauley, No. 15-577 ........... 8, 11

Steven B. Green, The Blaine Amendment

Reconsidered, 36 Am. J. Legal Hist. 38 (1992) ...... 4

Susan Gellman & Susan Looper-Friedman, Thou

Shalt Use the Equal Protection Clause for

Religious Cases (Not Just the Establishment

Clause), 10 U. Pa. J. Const. L. 665 (2008)....... 14-15

Synopsis of Remarks by Senator Spaunhorst, The

Weekly Tribune (Mar. 1870)...............ccccceceeeeeeeeeeees 4

William Hyde, 4 Encyclopedia of the History of St.

Louis (So. History Co. 1899) (1917)..............00..0c000

Regulations

Internal Revenue Service, Publication 1828, Tax

Guide for Churches & Religious Orgs. (2015)........

Constitutional Provisions

I, rc

INTEREST OF THE AMICUS CURIAE!

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicat-

ed to advancing the principles of individual liberty,

free markets, and limited government. Cato’s Center

for Constitutional Studies was established in 1989 to

help restore the principles of limited constitutional

government that are the foundation of liberty. To-

ward those ends, Cato publishes books and studies,

conducts conferences, and produces the annual Cato

Supreme Court Review.

The present case concerns Cato because religious

liberty is foundational to a free society.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Since the adoption of the First Amendment, and

even since the enactment of the Fourteenth Amend-

ment, the Court has wrestled with the meaning of the

religion clauses. At this point, it’s clear that any “wall

of separation between Church and State” created by

the Establishment Clause is not impenetrable. See

Letter from Thomas Jefferson, to Nehemiah Dodge,

Ephraim Robbins & Stephen S. Nelson, Comm. of the

Danbury Baptist Ass’n in the State of Conn. (Jan. 1,

1802) (on file with the Library of Cong.).

Not every aspect of a church’s existence involves

the government (thankfully), but in the modern

1 Rule 37 statement: All parties received timely notice of the

amicus curiaés intent to file this brief; the parties’ consent let-

ters have been filed with the Clerk. Counsel for the amicus certi-

fies that no counsel for any party authored any part of this brief

and that no person or entity other than amicus made a mone-

tary contribution to fund its preparation or submission.

world, governments are inevitably involved in much

of what churches do. This Court has determined that

granting tax-exempt status to church property, for

example, does not violate the Establishment Clause,

Walz v. Tax Comm'n of the City of New York, 397 U.S.

664, 667 (1970). It is also well understood that the

Free Exercise Clause is not violated when the gov-

ernment requires churches, like any other employer,

to withhold taxes from their non-ministerial employ-

ees. Internal Revenue Service, Publication 1828, Tax

Guide for Churches & Religious Orgs. 21 (2015).

A “church” is not merely an abstraction, nor even

a colleciion of individuals. A “church” often comprises

several symbiotic organizations that desire to impact

the world, thus necessitating interaction with the

government. Many churches operate charities, or

schools, or daycares. Many let other groups—

sometimes different churches or religious associa-

tions, but also ones that are not religious, like com-

munity dance clubs—use or rent the church’s proper-

ty. Countless churches have a playground or other

type of outdoor space that locals use after hours as if

it were a public park.

Yet because Trinity Lutheran is a church—and

solely on that basis—Missouri denied its application

to the scrap-tire grant program. Now the state de-

fends its blatant and facial discrimination against re-

ligion under its own constitutional provision and this

Court’s holding in Locke v. Davey, 540 U.S. 712

(2004). Those arguments must fail.

Article I, Section 7 of the Missouri Constitution

reads, in part: “no money shall ever be taken from the

public treasury, directly or indirectly, in aid of any

church, sect or denomination of religion.” This

“Blaine Amendment” was originally enacted in 1875,

and it is a product of religious bigotry. The Court

should not ignore the dark and prejudicial history of

Missouri's Blaine Amendment, which was passed for

explicitly anti-Catholic, discriminatory purposes. This

is true regardless of the amendment’s retention at

the state’s 1945 constitutional convention.

Missouri's discrimination here does not lie within

the “play in the joints” between the Establishment

and Free Exercise Clauses. To the contrary, the

state’s refusal to award Trinity Lutheran the play-

ground-surface grant is unconstitutional viewpoint

discrimination. Having decided to award these

grants, Missouri must award them fairly, without

reference to the religious or secular nature of the ap-

plicants. The fact that Trinity Lutheran can continue

operating as a church without the grant does not

remedy the violation.

Finally, the state’s action violates the Equal Pro-

tection Clause by discriminating based on religion, an

axiomatic foundation for strict judicial scrutiny.

ARGUMENT

I. MISSOURrPS BLAINE AMENDMENT CAN-

NOT BE DIVORCED FROM ITS ANTECED-

ENTS IN RELIGIOUS BIGOTRY

This Court has recognized that Blaine Amend-

ments are not a benign expression of a desire for a

strict separation of church and state. Justice Thomas,

writing for the four-member plurality in Mitchell v.

Helms, 530 U.S. 793, 828 (2000), stated that “hostility

to aid to pervasively sectarian schools has a shameful

pedigree that we do not hesitate to disavow. . . . Con-

sideration of the [Blaine] Amendment arose at a time

of pervasive hostility to the Catholic Church and to

Catholics in general. And it was an open secret that

‘sectarian’ was a code word for ‘Catholic.”

Similarly, the Arizona Supreme Court refused to

apply that state’s Blaine Amendment to a tax-credit

program, noting that “[t]he Blaine amendment was a

clear manifestation of religious bigotry, part of a cru-

sade manufactured by the contemporary Protestant

establishment to counter what was perceived as a

growing ‘Catholic’ menace.” Kotterman v. Killian, 972

P.2d 606, 626 (Ariz. 1999).2 Laws that are “born of

bigotry” have no place in our system of liberty. Mitch-

ell, 5380 U.S. at 829.

These dark roots apply specifically to the Mis-

souri’s Blaine Amendment as well. Missouri original-

ly enacted its constitutional amendment in 1875,

about a year before Congress voted down the federal

Blaine Amendment. See Steven B. Green, The Blaine

Amendment Reconsidered, 36 Am. J. Legal Hist. 38

(1992). This proximity is no coincidence. Anti-

Catholic sentiment was spreading throughout the

United States, and Missouri was no exception. In-

deed, political forces such as the Know-Nothing Par-

ty—partially spurred by religious animus—created a

persistent atmosphere of political intimidation. See

William Hyde, 4 Encyclopedia of the History of St.

Louis 97 (So. History Co. 1899) (1917). This animus

was noted by a Missouri state senator: “Why not say

in plain English what is intended” by adding “Catho-

lic” to the proposal? Synopsis of Remarks by Senator

Spaunhorst, Weekly Tribune (Mar. 1870).

2 The court went on to say, “we would be hard pressed to divorce

the amendment’s language from the insidious discriminatory

intent that prompted it.” Kotterman, 972 P.2d at 626.

In Zelman v. Simmons-Harris, Justice Breyer

wrote that anti-Catholic “sentiment played a signifi-

cant role in creating a movement that sought to

amend several state constitutions (often successfully),

and to amend the United States Constitution (unsuc-

cessfully) to make certain that government would not

help pay for ‘sectarian’ (i.e., Catholic) schooling for

children.” 536 U.S. 639, 720 (2002) (Breyer, J., dis-

senting). In the words of two leading scholars, the

“Blaine Amendment expressed Republican and

Protestant hostility toward religious (meaning Catho-

lic) schools.” John C. Jeffries, Jr. & James E. Ryan, A

Political History of the Establishment Clause, 100

Mich. L. Rev. 279, 351 (2001).

Respondents seek to ignore the history of the Mis-

souri Blaine Amendment by arguing that the

amendment arose from factors other than anti-

Catholicism, and that there is no evidence that Mis-

souris Blaine Amendment was motivated by anti-

religious or anti-Catholic animus. That is not, howev-

er, what the history shows.

Il. MISSOURrPS DISCRIMINATION AGAINST

TRINITY LUTHERAN VIOLATES BOTH RE-

LIGION CLAUSES, PLUS THE EQUAL PRO-

TECTION CLAUSE

Religious freedom is vital to a free society, and the

Constitution memorializes this sentiment in multiple

places and ways. See, e.g., Everson v. Bd. of Educ.,

330 U.S. 1, 8 (1947). In the words of President

Obama, “our commitment to religious freedom must

be unshakeable. The principle that people of all faiths

are welcome in this country and will not be treated

differently by their government is essential to who we

are.” Kenneth C. Davis, America’s True History of Re-

ligious Tolerance, Smithsonian Magazine (Oct. 2010),

http://www.smithsonianmag.com/history/americas-

true-history-of-religious-tolerance-61312684/?no-ist.

Although the two clauses work in different ways, a

law can violate both the Free Exercise Clause and the

Establishment Clause. Conditioning a benefit on reli-

gious status imposes “a unique disability upon those

who exhibit a defined level of intensity of involve-

ment in protected religious activity,” thus violating

the Free Exercise Clause. McDaniel v. Paty, 435 U.S.

618, 632 (1978) (Brennan, J., concurring). And “[t]he

Establishment Clause does not license government to

treat religion and those who teach or practice it,

simply by virtue of their status as such, as subversive

of American ideals and therefore subject to unique

disabilities.” Jd. at 641 (Brennan, J., concurring).

Both violations are present here.

In addition to the portions of the Constitution that

apply directly to religion, the Fourteenth Amend-

ment’s Equal Protection Clause also protects against

denying a benefit solely on the basis of religious sta-

tus—which is precisely what Trinity Lutheran expe-

rienced here. Such a distinction must face strict judi-

cial scrutiny. City of New Orleans v. Dukes, 427 U.S.

297, 303 (1976) (per curiam) (strict scrutiny applies

under the Equal Protection Clause where “a classifi-

cation trammels fundamental personal rights or is

drawn upon inherently suspect distinctions such as

race, religion, or alienage’”).

In short, under either the religion clauses or un-

der the Equal Protection Clause, Missouri’s discrimi-

nation here is unconstitutional.

A. Missouri’s Refusal to Award a Generally

Available Benefit to Trinity Lutheran Vio-

lates Both Religion Clauses

1. Withholding the Grant Violates the

Free Exercise Clause.

In McDaniel v. Paty, this Court overturned a pro-

vision of the Tennessee Constitution—adopted in

1796 as part of the state’s first constitution—that

prohibited clergy from holding office. 435 U.S. at 621.

The Court held that the prohibition “encroached upon

McDaniel’s right to the free exercise of religion” be-

cause the Free Exercise Clause “prohibits govern-

ment from regulating, prohibiting, or rewarding reli-

gious beliefs as such.” Id. at 626. In Justice Brennan’s

words, “disqualification provision imposed an uncon-

stitutional penalty upon appellant’s exercise of his

religious faith.” Jd. at 633 (Brennan, J., concurring).

When the government “handicaps” religion, it vio-

lates the Free Exercise Clause. Everson, 330 U.S. at

18 (“State power is no more to be used so as to handi-

cap religions than it is to favor them.”). Although

Employment Division v. Smith, 494 U.S. 872 (1990)

changed the landscape for free exercise claims, it only

did so for “neutral, generally applicable laws.” Id. at

881. Post Smith, a state certainly could not ban the

worship of the divine, for example. Nor could a state

offer scholarships to all students except those who

regularly attend church. A law that requires people to

choose between scholarships and religious service

would violate the Free Exercise Clause by “burdening

a particular religious practice.” Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532

(1993). It would “impose special disabilities on the

basis of religious status.” Smith, 494 U.S. at 877.

Similarly, Missouri’s discrimination against Trini-

ty Lutheran also “imposes special disabilities” on the

basis of religious status in violation of the Free Exer-

cise Clause. In denying the church’s application, the

Department of Natural Resources made this quite

clear: “the department is unable to provide this fi-

nancial assistance directly to the church.” Petition for

Certiorari 7, Trinity Lutheran Church of Columbia,

Inc. v. Pauley, No. 15-577. Because this is a facial

distinction, and not a “neutral law of general applica-

bility,” Smith, 494 U.S. at 879 (quoting United States

v. Lee, 455 U.S. 252, 263 n. 3 (1982)), it must meet a

higher level of scrutiny. The “minimum requirement

of neutrality is that a law not discriminate on its

face.” Church of the Lukumi, 508 U.S. at 533. Alt-

hough Missouri’s constitution disfavors religion gen-

erally—rather than religious practices—as in Church

of the Lukumi, that difference is not material because

the government must “maintain strict neutrality, nei-

ther aiding nor opposing religion.” Sch. Dist. of

Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963).

Missouri's facially discriminatory Blaine Amend-

ment cannot meet the heightened scrutiny required

by Smith and, ultimately, by Sherbert v. Verner, 374

U.S. 398 (1963). See, Smith, 494 U.S. at 878 (Git would

be unconstitutional to “to prohibit bowing down be-

fore a golden calf.”). The Blaine Amendment is facial

discrimination against religion per se that is as con-

stitutionally intolerable as prohibiting the “casting of

statues that are to be used for worship purposes.” /d.

The Free Exercise Clause protects against facial

discrimination based on religious status just as it

protects against specific discrimination against reli-

gious beliefs. McDaniel, 435 U.S. at 643 (“Tennessee

here has penalized an individual for his religious sta-

tus—for what he is and believes in—rather than for

any particular act generally deemed harmful to socie-

ty.”) Although McDaniel predates Smith, the Sherbert

test is still in place for non-neutral laws. Smith, 494

U.S. at 881; see also, Douglas Laycock, Theology

Scholarships, the Pledge of Allegiance, and Religious

Liberty: Avoiding the Extremes but Missing the Liber-

ty, 118 Harv. L. Rev. 155, 201 (2004) (“Under Smith,

the threshold question is whether the law that bur-

dens religious exercise is ‘neutral’ and ‘generally ap-

plicable.’ If so, the burden on religion requires no jus-

tification whatever. If not, the burden on religion is

subject to the compelling interest test as before.”) In

Sherbert, a statute disqualifying from unemployment

benefits those who were unwilling to work on Satur-

day was overturned because it forced the petitioner

to choose between following the precepts of her

religion and forfeiting benefits, on the one

hand, and abandoning one of the precepts of

her religion in order to accept work, on the

other hand. Governmental imposition of such

a choice puts the same kind of burden upon

the free exercise of religion as would a fine im-

posed against appellant for her Saturday wor-

ship.

Sherbert, 374 U.S. at 404. Of course, that statute was

neutral, so the outcome would have been different

post-Smith. But the reasoning still applies to the non-

neutral provision of Missouri’s Constitution at issue

here. Trinity Lutheran Church is being forced to

choose between following “the precepts of [its] relli-

gion and forfeiting benefits.” Jd.

If Petitioner is viewed as a daycare center, this

becomes clear. The state has in essence said that it

would have given the funds to the daycare but for the

fact that it engages in religious practices. Thus, like

Church of the Lukumi, the state is punishing an inte-

gral part of Petitioner’s religion—the ability of be-

lievers to meet together to celebrate their common

belief. It is irrelevant that the daycare is an entity

rather than an individual, and that the state has re-

fused to grant a benefit rather than exacted a pun-

ishment. Cf. Natl Endowment for the Arts v. Finley,

524 U.S. 569, 587 (1998) (“[T]he First Amendment

certainly has application to the subsidy context.”).

2. Withholding the Grant Violates the Es-

tablishment Clause.

The Establishment Clause prohibits not only gov-

ernment actions establishing—endorsing, supporting,

etc.—religion, but also those handicapping it. Everson

v. Bd. of Educ., 330 U.S. 1, 18 (1947) (“[The Estab-

lishment Clause] requires the state to be a neutral in

its relations with groups of believers and non-

believers; it does not require the state to be their ad-

versary. State power is no more to be used so as to

handicap religions than it is to favor them.”) (empha-

sis added). Indeed, religious neutrality is the under-

pinning of this Court’s longstanding Lemon test for

assessing Establishment Clause cases. But the

Clause goes beyond merely allowing Missouri to give

Trinity Lutheran a scrap-tire grant under its pro-

gram. The Clause’s mandate that government “nei-

3 In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court formu-

lated the test for programs under the Establishment Clause:

“First, the statute must have a secular legislative purpose; sec-

ond, its principal or primary effect must be one that neither ad-

vances nor inhibits religion; finally, the statute must not foster

‘an excessive government entanglement with religion.” /d. at

612-13 (Gnternal citations omitted).

ther advances nor inhibits religion,” Lemon, 403 U.S.

at 612-13, means that the state cannot deny Trinity

Lutheran a grant on the sole basis that it is a church.

While the Lemon test has undergone restatement

in recent years, see Agostini v. Felton, 521 U.S. 203

(1997), its core of evenhandedness has remained in-

tact: government may not engage in actions that have

the primary effect of advancing or inhibiting religion.

Nor, under the “endorsement” aspect of the test, may

government express endorsement or disapproval of

religion.* Missouri's interpretation and application of

its Blaine Amendment plainly has the primary effect

of inhibiting religion and conveys an unmistakable

message of disapproval, especially in light of the

Blaine Amendment’s sordid history. See supra, part I.

If a church such as Trinity Lutheran wants to in-

stall a safe rubber playground surface, it will have to

pay for it itself. The denial of a grant for the scrap-

tire playground surface occurs solely because the ap-

plicant is a church. But for that fact, Trinity Luther-

an would have been awarded one of the 14 grants

given that year. See Petition for Certiorari 7, Trinity

Lutheran Church of Columbia, Inc. v. Pauley, No. 15-

577. Such a rule clearly places religion at a disad-

vantage vis-a-vis non-religion.

There is no such thing as a complete separation of

church and state, especially in a world where gov-

ernment is involved in so many aspects of everyday

life. But the boundary between church and state is

4 See, e.g., Capitol Square Rev. & Advisory Bd. v. Pinette, 516

U.S. 753, 778 (1995) (O’Connor, J., concurring in the judgment);

Bad. of Educ. v. Grumet, 512 U.S. 687, 720 (1994) (O’Connor, J.,

concurring in part and concurring in the judgment); Bd. of Ed. v.

Mergens, 496 U.S. 226, 249 (1990); Edwards v. Aguillard,482

U.S. 578, 585 (1987); Wallace v. Jaffree, 472 U.S. 38, 56 (1984).

not properly policed by handicapping religion. See,

McDaniel, 435 U.S. at 638 (Brennan, J., concurring)

(“[W]e have rejected as unfaithful to our constitution-

ally protected tradition of religious liberty, any con-

ception of the Religion Clauses as stating a ‘strict no-

aid’ theory.”) When a state decides to create a scrap-

tire grant program for playgrounds, it will naturally

find that its program reaches churches like Trinity

Lutheran that have set up daycare centers or main-

tain a community playground. Having thus found it-

self face-to-face with religion, the state must either

treat religious applicants to its program the same

way it treats all others or somehow argue that its dis-

crimination is justified. Missouri chose the latter

course, but its protestations lack constitutional merit.

Moreover, Locke v. Davey, 540 U.S. 712 (2004),

does not control here. Locke was a unique case that

dealt with a state’s refusal to fund a future minister’s

devotional training, a historical concern that, “[s]ince

the founding of our country, [has seen] popular upris-

ings against procuring taxpayer funds to support

church leaders, which was one of the hallmarks of an

‘established’ religion.” Jd., 540 U.S. at 722. Locke’s

Promise Scholarship Program allowed “students to

attend pervasively religious schools, so long as they

are accredited,” and students were “still eligible to

take devotional theology courses.” Jd. at 724-25. The

Court also explicitly said that the program did not

evince “hostility toward religion,” but rather went a

“long way toward including religion in its benefits.”

Id. at 724. Clearly, that is not the case here.®

5 Amicus filed a brief supporting Joshua Davey in Locke v.

Davey and disagrees with the Court’s holding that the scholar-

ship program’s exclusion of theology majors satisfied the Reli-

Safe playgrounds are worlds away from taxpayer-

supported clergy. Missouri has shut the church out

from its program even though the grants would go to

something entirely distinct from religious instruction.

This is not a “play in the joints” case, id. at 719, but

one of intentionally inhibiting religion.

B. It Also Violates the Equal Protection

Clause

The Equal Protection Clause limits how the gov-

ernment can use certain characteristics as a basis for

government action. The Court has long held that the

Clause, despite its Civil War-era origins, extends its

protection far beyond race—see, e.g., U.S. Dep't of

Agric. v. Moreno, 413 U.S. 528, 534 (1973) (discrimi-

nation against, in the words of Justice Brennan, “so-

called ‘hippies’ and ‘hippie-communes”); Reed ov.

Reed, 404 U.S. 71, 74 (1971) (sex discrimination)—

and that certainly includes religious discrimination.

See, e.g., United States v. Armstrong, 517 U.S. 687,

715 (1996); Burlington N. R.R. Co. v. Ford, 504 U.S.

648, 650 (1992); Niemotko v. Maryland, 340 U.S. 268,

272 (1951); Am. Sugar Ref. Co. v. Louisiana, 179 U.S.

89, 92 (1900). Most classifications receive only ra-

tional basis review and are generally upheld. But

where government’s distinction between groups in-

volves a fundamental right like religion, the action

receives strict scrutiny. City of New Orleans v. Dukes,

427 U.S. 297, 303 (1976) (per curiam) (strict scrutiny

applies under the Equal Protection Clause where “a

classification trammels fundamental personal rights

or is drawn upon inherently suspect distinctions such

as race, religion, or alienage’”).

gion or Equal Protection Clauses. Nevertheless, even if Locke

was rightly decided, it does not support Missouri's actions here.

14

Certainly under the circumstances of this case, re-

ligion should constitute a suspect classification. Trin-

ity Lutheran sought a scrap-tire grant for the play-

ground its daycare children use to play outside. It did

not seek a grant to buy more books for its library or

even music books (i.e., hymnals), which could have

religious overtones. There is simply nothing religious

about a playground surface that will make daycare

and community children’s duck-duck-goose games

safer. Missouri cannot provide a compelling justifica-

tion for discriminating against religion here.

Although this Court has recently gone far towards

reducing government-sponsored religious discrimina-

tion, there can be no serious question that the history

is replete with examples of religious bias in state law,

of which the Blaine Amendments are but one aspect.

In many circumstances, the Equal Protection Clause

presents a straightforward way of identifying and

rectifying religious discrimination, in much the same

way that the clause has dealt with the prevalence of

race discrimination.®

6 Some of the confusion regarding the Court’s religion-clause

jurisprudence might be dispelled by using equal-protection

analysis. For example, Sherbert, 374 U.S. 398 (1963), Thomas v.

Review Bd., 450 U.S. 707 (1981), and Hobbie v. Unemployment

Appeals Comm., 480 U.S. 136 (1987), might appear to be incon-

sistent with Smith, 494 U.S. at 881-82 (holding that a classifica-

tion must be based upon religion to be actionable under the reli-

gion clauses). This has resulted in the Sherbert line of cases as

being viewed as exceptions requiring neutral rules to accommo-

date religion. They could, however, also be viewed as discrimina-

tion cases, to the extent that non-religious excuses for failing to

meet the religion-neutral requirements were accepted while re-

ligious excuses were not. Similarly, Walz v. Tax Comm., 397

U.S. 664 (1970), upholding tax exemptions for church property,

can be analyzed as a case refusing to single out religious institu-

tions from the class of institutions afforded tax relief. See Susan

In denying Trinity Lutheran a grant on the sole

basis that it is a church, Missouri violated the

church’s right to the equal protection of the laws. If

government refused to supply religious institutions

with police and fire protection because they were re-

ligious, the equal protection problem would be undis-

putable. Similarly, for New Jersey to provide free

transportation to students in all but religious schools

(Everson) or New York to supply free secular text-

books to all students but those attending religious

schools (Bd. of Educ. v. Allen, 392 U.S. 236 (1968))

constituted impermissible religious discrimination.

This case can thus be easily resolved under this

Court’s existing equal-protection jurisprudence. It is

no answer to the discrimination that occurred here to

say that Trinity Lutheran remains free to conduct its

religious services, preach its gospel, and even operate

its daycare—just as for African Americans excluded

from jury service, it was no answer to argue that they

could still live out all the other aspects of their lives.

See Strauder v. Virginia, 100 U.S. 303 (1879). Or for

Asian-owned laundries, it was no answer to say that

they could go into another business. See Yick Wo uv.

Hopkins, 118 U.S. 356 (1886). Or for an African

American denied admission to a state law school, it

was no answer to say that he would still be given

funds to attend an out-of-state one. See Missouri ex

rel. Gaines v. Canada, 305 U.S. 337 (1938). Discrimi-

nation of this sort is not remedied by other outlets.

For that matter, that Abigail Fisher went to another

college and has begun a successful career did not

Gellman & Susan Looper-Friedman, Thou Shalt Use the Equal

Protection Clause for Religious Cases (Not Just the Establish-

ment Clause), 10 U. Pa. J. Const. L. 6665 (2008).

16

cause the Court to summarily dismiss Fisher v. Univ.

of Tex. at Austin, 133 S. Ct. 2411 (2013).

Missouri's discrimination against Trinity Luther-

an in the Scrap Tire Grant Program simply cannot be

excused by reference to the church’s continued ability

to operate a church or even a daycare. Furthermore,

the state’s action cannot be re-characterized as any-

thing other than discrimination on the basis of reli-

gion: Seeing that Trinity Lutheran was a church,

Missouri denied it the program funds. Yes, having a

daycare is not essential to running a church, but a

statute banning Muslims from holding office would be

religious discrimination even though holding political

office is not a central tenet of the Islamic faith.

Since the religious discrimination is facial, Mis-

souri’s must meet strict scrutiny and establish that

its actions achieved a compelling governmental inter-

est through the least restrictive means. See Fisher,

133 S. Ct. at 2417. Missouri has asserted an interest

in not violating its Blaine Amendment by giving

funds to a religious organization. Because it is stipu-

lated that no Establishment Clause violation would

be present if the funds were given, and because of the

Blaine Amendment’s pedigree, see supra Part I, it is

difficult to call this a compelling purpose. Moreover,

however persuasive that interest may appear at first

glance, it cannot stand up to constitutional challenge.

Missouri cannot assert an interest arising from its

own constitution that would outweigh the U.S. Con-

stitution’s ban on religious discrimination any more

than it could ask for leeway in discriminating based

on race if that was called for under its constitution.

7 Note that this is a separate issue from whether Fisher’s en-

rollment at another university made the case moot.

Beyond the fact that a state constitutional provi-

sion is invalid if it conflicts with a federal constitu-

tional provision, it would be illogical to allow that

provision to constitute a compelling governmental in-

terest here. Missouri’s argument boils down to assert-

ing a compelling interest in “not providing any funds

to churches.” This is circular reasoning; an interest

cannot justify itself.

Even if Missouri's interest is reframed as not

showing favor to or endorsing religion—a compelling

Establishment Clause interest—denying the scrap-

tire grant to Trinity Lutheran would not achieve that

interest. Because this Court has made clear that the

Establishment Clause is not violated when a govern-

ment program gives aid to religious organizations on

the same terms as secular ones, Mitchell, 530 U.S. at

835, then this Court has effectively said that includ-

ing religious groups in general government programs

does not promote religion.

In Widmar v. Vincent, 454 U.S. 263 (1981), for ex-

ample, the Court held that a state university that

makes its facilities generally available for the use of

registered student groups cannot close its facilities to

groups that wish to use them for religious worship

and discussion. Jd. at 264—65, 267. Coincidentally,

Widmar involved the University of Missouri, and the

state argued that its discrimination was justified by

its “compelling interest in maintaining strict separa-

tion of church and State” under the federal and state

“Establishment Clauses.” Jd. at 265, 270.

The Court rejected Missouri’s argument that

opening the forum to religious groups would not vio-

late the federal Establishment Clause. Jd. at 271-75.

The state’s asserted interest “in achieving greater

18

separation of church and State than is already en-

sured under the Establishment Clause of the Federal

Constitution” was limited by federal constitutional

provisions, and the Court was “unable to recognize

the State’s interest as sufficiently ‘compelling’ to jus-

tify” its discrimination in that case. Id. at 276. The

Court added: “If the Establishment Clause barred the

extension of general benefits to religious groups, ‘a

church could not be protected by the police and fire

departments, or have its public sidewalk kept in re-

pair.” Widmar,, 454 U.S. at 274—75 (quoting Roemer

v. Bd. of Pub. Works of Md., 426 U.S. 736, 747

(1976)); contra Brief in Opposition to Petition for Cer-

tiorari 9-10, Trinity Lutheron Church of Columbia,

Inc. v. Pauley, No. 15-577.

Finally, contrary to decision below, this Court can,

consistent with precedent, hold that the Equal Pro-

tection Clause requires Missouri to award Trinity Lu-

theran a grant on the same basis as non-religious ap-

plicants. In Widmar, this Court required that gener-

ally open facilities be made available to religious

groups, even though providing such facilities required

the University of Missouri to spend more money on

electricity and other utilities, as well as paying for

the extra time of security guards. 454 U.S. at 265.

Although students paid “an activity fee of $41 per

semester to help defray the costs to the University,”

opening up facilities to religious groups unquestiona-

bly raised the total costs to the university.

In Zobrest v. Catalina Foothills School District,

509 U.S. 1, 13-14 (1993), this Court held that the

school district would not violate the Establishment

Clause by providing a sign-language interpreter to a

student attending a sectarian school.* Zobrest arose

from a request that the district provide a sign-

language interpreter for a boy enrolled in a sectarian

high school. Jd. at 3. When the district refused on the

basis that doing so would violate the Establishment

Clause, his parents filed suit under the Individuals

with Disabilities Education Act (IDEA). Id. at 4. The

district court granted and the Ninth Circuit affirmed

summary judgment in favor of the district. This

Court’s ruling did more than merely allow the school

district to provide the interpreter. It had the practi-

cal—and legal—effect of requiring the district to pro-

vide a grant for use in a sectarian school.

Even though it was the IDEA that compelled ac-

tion in Zobrest, that case still rebuts the Eighth Cir-

cuit’s claim that nothing in “the Free Exercise

Clause, the Establishment Clause, or the Equal Pro-

tection Clause compel[s] Missouri to provide public

grant money directly to a church.” Trinity Lutheran

Church of Columbia, Inc. v. Pauley, 788 F.3d 779, 784

(8th Cir. 2015). Instead, the requirement of equal ac-

cess—for “compel[ing] Missouri to provide public

grant money directly to a church—is triggered by the

existence of the scrap-tire grant program, something

that Missouri was certainly not required to create.

Nor is this case similar to Palmer v. Thompson,

403 U.S. 217 (1971), where the closing of all public

pools after racial integration gave rise to an equal-

protection claim that was denied by this Court be-

cause nothing in the Constitution “requires that pub-

lic swimming pools, once opened, may not be closed.”

8 Before Catalina Foothills High School—which happens to be

counsel Weber’s alma mater—was established in 1992, district

children attended various schools scattered throughout Tucson.

20

Id. at 228 (Burger, CJ, concurring) (emphasis origi-

nal). In Palmer, had there been evidence “to show

that the city is now covertly aiding the maintenance

and operation of pools which are private in name on-

ly’—in other words, white-only pools—the outcome

would have been different. Jd. at 225. Similarly, if

Missouri eliminated its scrap-tire program, this

Court certainly could not compel it back into exist-

ence. Yet, by maintaining the program while discrim-

inating on the basis of religion, the state is, by analo-

gy, running white-only pools.

In sum, the Equal Protection Clause does not re-

quire Missouri to have a scrap-tire grant program,

but it does demand that if the state has one, it must

open it to all without regard to religious status.

CONCLUSION

For the foregoing reasons, the decision of the

Eighth Circuit should be reversed.

Respectfully submitted,

ILYA SHAPIRO

Counsel of Record

JAYME WEBER

Cato Institute

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

ishapiro@cato.org

jweber@cato.org