The Impact of Trinity Lutheran on Religious Educational Institutions

Posted by Gene Schaerr | Jul 10, 2017 | 0 Comments

Trinity Lutheran is highly important for all religious institutions.  True, the immediate issue in the case was mundane:  whether a church-owned school could compete on equal terms for a state grant that would reimburse it for resurfacing its playground with rubber from recycled tires.  But the core, underlying question for religious institutions was how broadly or narrowly the Court would construe its prior decision in Locke v. Davey.  In Locke, the Court in that case sustained against a free exercise challenge a Washington policy that denied generally available scholarship money to a student who wanted to use it for a theology degree as a prelude to becoming a minister. 

Although Locke could be read narrowly—as allowing governments to discriminate against people and institutions of faith only when such discrimination was supported by a long-standing tradition dating to the founding era—some lower courts had read the decision more broadly, specifically, as allowing religious discrimination whenever the government had any legitimate “anti-establishment interest” in avoiding the funding.  And some of those decisions had sanctioned religious discrimination directed at religious education.  One of those, by the Kentucky Supreme Court, in University of the Cumberlands v. Pennybacker, denied otherwise generally available state bond financing to a religious college on the basis of Locke. 

As Justice Thomas pointed out in his concurrence, Trinity Lutheran construed Locke “narrowly.”  In so doing, it articulated a free exercise-based neutrality principle that will be very helpful to religious institutions in the future:  A government, the Court held, cannot discriminate against religious institutions based solely upon the institution's “religious character.”  Thus, for example, although the Court didn't specifically single out Pennybacker, the reasoning in that decision was effectively invalidated by the analysis in Trinity Lutheran

The Court thus made it very difficult for any government to engage in the kinds of discrimination against religious education at issue in Pennybacker and in other situations affecting religious colleges and universities.  Those situations include anti-religious discrimination in such things as:

  •        allocation of scholarship funds (other than use of scholarships specifically to train ministers, as in Locke);
  •        accreditation;
  •        credit transfer policies;
  •        tax exemptions; and
  •        government contracts.

Indeed, even the dissenting Justices  – in an opinion written by Justice Sotomayor and joined by Justice Ginsburg – didn't dispute the application of the majority's anti-discrimination principle to separately incorporated religious educational institutions.  The dissent's only beef with the majority's rule was that it may sometimes result in governments providing funds directly to “churches.” 

Trinity Lutheran leaves open the important question of whether and to what extent religious institutions can be discriminated against based upon religiously motivated conduct:  The Chief Justice's majority opinion – on behalf of six Justices – is expressly limited to discrimination based on religious status.  (That's the main point of his much-discussed footnote 3, which technically isn't part of the Court's decision.)  But as Justice Gorsuch's concurring opinion notes—without contradiction from the other Justices—the First Amendment also imposes severe constraints on a government's ability to discriminate based on religiously motivated conduct.  And given the context of lower court decisions that had over-read Locke to permit a wide range of religious discrimination, the Court's denunciation of status-based discrimination in Trinity Lutheran will be very relevant in future cases regarding governmental discrimination based in any way on religion.  

About the Author

Gene Schaerr

Gene Schaerr specializes in handling—and usually winning—civil appeals, writ proceedings and similar matters, both in appellate courts and in the law-focused proceedings at the trial-court or agency level that often determine success or failure on appeal. He has argued and won dozens of cases in a variety of forums—including the U.S. Supreme Court (where he has argued six cases), every federal circuit, and numerous federal district courts and state appellate courts. His win rate in the dozens of federal appeals he has argued in the past six years is over 75 percent. He was a coordinator of Sidley Austin's appellate practice from 1993 until 2005, and from 2005 until 2014 was the chair of the nationwide appellate practice at Winston & Strawn—a practice he led to numerous recognitions in such publications as the Appellate Hot List. His personal practice successes have won him repeated recognition in such publications as Best Lawyers in Washington, D.C., Legal 500, D.C. Superlawyers, and Best Lawyers in America. In January 2014, Mr. Schaerr formed his own boutique litigation firm so that he could serve his clients without the conflicts and inefficiencies inherent in big-firm law practice. Substantively, Mr. Schaerr's experience includes not only virtually every area of federal law, defamation, higher education law, immigration, insurance coverage, labor and employment, patent and trademark, privacy, product liability and warranty, statutory interpretation and tax.He has represented clients in virtually every sector, including automotive, communications, energy, financial services, health care, higher education, insurance, maritime, pharmaceuticals, technology and state and local government. He also teaches courses in Supreme Court litigation, religious freedom litigation and advanced litigation skills as an adjunct professor of law at the Brigham Young University law school. Mr. Schaerr began law practice in 1987 following clerkships on the U.S. Supreme Court (for Chief Justice Warren Burger and Justice Antonin Scalia) and on the U.S. Court of Appeals for the D.C. Circuit (for then- Judge Kenneth Starr). He graduated in 1985 from the Yale Law School, where he was Editor-in-Chief of the Yale Journal on Regulation and Senior Editor of the Yale Law Journal. From 1991 to 1993, he served in the White House as Associate Counsel to the President, where he had responsibility for a wide range of constitutional and administrative-law issues, including those involving economic regulation, higher education, separation of powers, federalism and religious freedom. He serves as Chairman of the Constitutional Sources Project, a digital resource providing free public access to historical materials relevant to the U.S. Constitution.


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