Requirement of Aid (Part I)
If the Establishment Clause permits some forms of aid to religious organizations, are there instances when the Free Exercise Clause (or some other constitutional provision) requires such aid? The Court has not been entirely clear on this question.
In Locke v. Davey, the Court held that a state’s exclusion of a college scholarship for people pursuing degrees in devotional theology does not violate the Free Exercise Clause. The Court noted that there is “room for play in the joints” between Free Exercise and Establishment.
In Trinity Lutheran, the Court held that categorically disqualifying churches from a playground-resurfacing program solely because of their religious character violates the Free Exercise Clause. Chief Justice Roberts’ majority opinion made a distinction between religious identity and religious use; Justice Gorsuch found this distinction conceptually thin. Who do you agree with?
As you read today’s cases, can you distinguish them from (1) Zelman; (2) Witters; (3) Lukumi; and (4) each other?
Locke v. Davey and Trinity Lutheran point to two different answers about whether a state must include religious schools in a generally available program in order to avoid a Free Exercise concern.
Locke v. Davey, 540 U.S. 712 (2004)
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US 449 (2017)
Optional Reading:
Hillary Byrnes, “The Constitution Provides a Level Playing Field for People of Faith,” SCOTUSblog (June 27, 2017)
Leslie Griffin, “Bad News from Trinity Lutheran—Only Two Justices Support the Establishment Clause,” SCOTUSblog (June 26, 2017)
Matt Barnum, “Will Churches Ever Be Allowed to Run Charter Schools?” The Atlantic (July 19, 2017)