Religious Disqualification.

The Supreme Court has recog-nized that the Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects laws that target the religious for “special disability” based on their “religious status” to strict scrutiny.366 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring “[ministers] of the Gospel, or [priests] of any denomination whatever” from serving as a delegate to a state constitutional convention.367 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one’s religion on the “surrender” of the right to seek office as a delegate.368 Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding for the resurfacing of playgrounds because of the church’s religious affiliation.369 Specifically, Chief Justice Roberts, on behalf of the Court,370 noted that Missouri’s policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the “most exacting scrutiny.”371 In so holding, the Court rejected the State of Missouri’s argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.372 Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion,” as well as “outright” prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.373 Moreover, the Court held that Missouri’s policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.374 As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.375


See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 506 U.S. 520, 533, 542 (1993). back
435 U.S. 618, 620 (1978). back
See Id. at 626 (plurality opinion). A plurality opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, and Stevens noted that the absolute prohibition on the government regulating religious beliefs (as established by Torasco v. Watkins, 367 U.S. 488 (1961)) was inapplicable to the case because the Tennessee disqualification was a prohibition based on religious “status,” not belief. See id. at 626–27. Nonetheless, the plurality opinion concluded that the (1) Tennessee law was governed by the balancing test established under Sherbert v. Verner, 374 U.S. 498, 406 (1963), and (2) the law’s regulation of religious status could not be justified based on the state’s outmoded views of the dangers of clergy participation in the political process. Id. at 627–28. Justice Brennan, joined by Justice Marshall, relying on Torasco, argued that the challenged provision, by establishing as a “condition of office the willingness to eschew certain protected religious practices,” violated the Free Exercise Clause. Id. at 632 (Brennan, J., concurring). Justice Brennan’s concurrence also maintained that the exclusion created by the Tennessee law could violate the Establishment Clause. Id. at 636. In a separate opinion, Justice Stewart noted his agreement with Justice Brennan’s conclusion that Torasco controlled the case. Id. at 642 (Stewart, J., concurring). Rather than relying on the Free Exercise Clause to invalidate the Tennessee law, Justice White’s concurrence suggested that the law was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Id. at 643 (White, J., concurring). back
See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15–577, slip op. at 5 n.1 (2017). back
Three Justices (Kennedy, Alito, and Kagan) joined Chief Justice Roberts’ entire opinion, while Justices Thomas and Gorsuch joined in all but a single footnote of the decision. The footnote that Justices Thomas and Gorsuch declined to join was a footnote that claimed that the instant case was examining “express discrimination based on religious identity with respect to playground resurfacing” and did not “address religious uses of funding or other forms of discrimination.” Id. at 18 n.3. back
Id. at 10. back
Id. back
Id. at 10–11. As a result, the Court characterized the church’s injury not so much as being the “denial of a grant” itself, but rather the “refusal to allow the Church . . . to compete with secular organizations for a grant.” Id. at 11. back
Id. at 14. Both parties agreed, and the Court accepted, that the Establishment Clause did not prevent Missouri from including the church in the state’s grant program. Id. at 6. back
Id. at 14–15. back