Religious freedom dominates term's end

The Supreme Court closed out its 2016 term on a high note for churches, a hopeful note for small businesses unwilling to provide services to same-sex weddings, and a mixed note for President Trump’s ban on immigration from six majority-Muslim countries.

In a notable church-state ruling, the court held June 26 that a preschool operated by a church in Missouri was eligible for a state playground safety grant despite the state constitution’s ban on giving money to churches. Denying a public benefit to a church only because it is a religious entity is “odious to our Constitution,” Chief Justice John Roberts wrote. The constitutions of 38 other states contain similar bans.

In other actions, the court agreed to consider appeals by a Colorado baker found guilty of violating state anti-discrimination law for refusing to bake a cake for a same-sex wedding celebration, and by the Trump administration from lower court rulings against its temporary ban on immigration from six Muslim-majority countries. The Supreme Court allowed partial implementation of the ban to go forward pending a final decision.

The court will hear both cases in the fall.

Earlier, on June 5, religious interests scored another win when the court ruled that federal law exempts hospital systems with church ties from some provisions of federal pension law. In a friend of the court brief, several national Catholic groups, including the bishops’ conference, said “whether a ministry is part of the church is a question for the church,” not the government, to decide.

Religious discrimination

The playground case (Trinity Lutheran v. Comer) began in 2012 when Trinity Lutheran Church in Columbia, Missouri, which operates a day care and preschool, sought funds from a playground safety program run by the state Department of Natural Resources to replace a gravel playground surface with a rubberized one.

The request ranked fifth among 14 approved grant proposals. But the department, citing the state constitution’s ban on funding “in aid of any church,” said no precisely because Trinity Lutheran is a church.

The church then sued, arguing its First Amendment right of religious free exercise had been violated. A three-judge panel of the U.S. Court of Appeals for the Eighth Circuit ruled for the state, and it was that decision which the Supreme Court reversed.

The Missouri constitution’s ban resembles provisions in 38 other state constitutions collectively known as Blaine amendments.

The name goes back to 1875. At a time of widespread hostility to Catholic parochial schools, Speaker of the House of Representatives James G. Blaine of Maine introduced an amendment like this one to the U.S. Constitution. The amendment passed in the House but fell four votes short of passage in the Senate. But Blaine-type amendments then spread to states.

The Supreme Court’s majority opinion was written by Chief Justice John Roberts and was joined by Justices Anthony Kennedy, Samuel Alito and Elena Kagan. Justices Clarence Thomas and Neil Gorsuch joined in the opinion, except for a footnote saying the case involved only playground resurfacing and should not be considered to extend to “religious uses of funding” or other forms of religious discrimination.

Justice Stephen Breyer concurred in the substance of the ruling. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented.

Chief Justice Roberts wrote in part:

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the state’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees.

“But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”


The Colorado same-sex wedding case (Masterpiece Cakeshop v. Colorado Civil Rights Commission), which the court agreed to hear, began in 2012 when a Lakewood, Colorado baker named Jack Philips declined to make a cake for the wedding reception of two men then planning to marry in Massachusetts. He was found guilty of violating state anti-discrimination law.

Other small businesses, such as florists and wedding photographers, have similarly balked at providing services to same-sex weddings, with similar results.

Philips argues that for him baking cakes is a form of expression and penalizing him for refusing to make a cake celebrating something he does not condone violates his First Amendment rights of freedom of expression and religious liberty.

Travel ban’s future

In the immigration cases, the Trump administration seeks reversal of rulings by the U.S. appeals courts for the fourth and ninth circuits (Trump v. International Refugee Assistance Project and Trump v. Hawaii). The administration’s temporary ban applies to immigrants and refugees from Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court said in an unsigned opinion that the ban could go into effect on an interim basis, but should not apply to people with “a credible claim of a bona fide relationship with a person or entity in the United States.” That presumably includes family members, students enrolled in U.S. schools and people with jobs here.

Justices Thomas, Alito and Gorsuch joined in a separate opinion saying they would have overturned the lower courts’ preliminary injunctions against the ban. They predicted the compromise provided by their colleagues would unloose a “flood of litigation” until the dispute is finally resolved.

An earlier win

The pension fund case (Advocate Healthcare Network v. Stapleton) involved three hospital systems with church ties, two of them Catholic — St. Peter’s Healthcare System, owned by the Diocese of Metuchen, New Jersey, which includes a hospital and other facilities, and Dignity Health, which operates a nationwide network of community hospitals and other facilities and has ties with religious orders.

The third system, Advocate Health Care Network, operates hospitals and health facilities in Illinois and is associated with the Evangelical Lutheran Church in America and United Church of Christ.

The Supreme Court ruled unanimously that the employee pension plans of the three systems are exempt from various requirements of a 1980 federal law regardless of whether the plans were originally established directly by a church. The opinion by Justice Kagan pointed out that the exemption was repeatedly confirmed by the Internal Revenue Service for some 30 years.

Five national Catholic organizations including the U.S. Conference of Catholic Bishops argued in an amicus brief that leaving it to government to weigh the relationship of a health system to a church with which it has ties would involve unconstitutional “entanglement” of government in religious affairs.

Russell Shaw is an OSV Newsweekly contributing editor.