The Court ruled this week in Trinity Lutheran v. Comer, the church playground tire case that I previously wrote about. This post will discuss the majority opinion’s attempt – perhaps a futile one – to blunt the extent of its holding via what I’ll call a “limiting provision”, and I’ll discuss other cases where the Supreme Court has similarly attempted to artificially limit the scope of its holding essentially by saying as such, even if the actual rationale of the court suggests otherwise.
I. Trinity Lutheran: What’s Behind Footnote Number 3?
But first, some background. In Trinity Lutheran, a church applied for a state grant for reimbursement to buy tire scraps to use as a safe surface for its playground. What some might generously call the center of the Court – Chief Justice Roberts writing for Justices Kennedy, Kagan, and Alito (I know, I know, he’s not moderate, but he sure ain’t Justices Thomas or Gorsuch) – found that prohibiting Trinity Lutheran Church from the Missouri tire scrap program solely because it was a church ran afoul of the Free Exercise clause of the First Amendment. Justice Breyer, also certainly considered to be a moderate, concurred in the judgment only. Justices Ginsburg and Sotomayor dissented. That leaves Justices Thomas and Gorsuch, and it gets us to Footnote 3 of the majority opinion. Thomas and Gorsuch concurred with the entirety of Chief Justice Roberts’ majority opinion… except for footnote 3.
Footnote 3 stated, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” The intent of this footnote was clearly to placate the more liberal members of the majority. See, this case is seen by some as a wolf in sheep’s clothing, an attempt by the religious right to destroy the wall between church and state. The thinking goes, once the court blesses – indeed, mandates – government funding of a church, then the Establishment Clause ceases to have the same effect. Sure, this is about playgrounds, but the next case will be about government funding of prayer books, or religious schools, etc. Plus, the court is now requiring the government to pay churches; that money – while earmarked for playground tire scraps – can now be used for any religious purpose whatsoever. So, footnote 3 basically says, to paraphrase Allen Iverson, “we talkin’ about playgrounds.”
But is that actually persuasive? Just because the majority claims that the holding doesn’t apply to religious uses, that doesn’t mean the majority’s rationale wouldn’t also then apply to such uses in a later case. Essentially, all the Court is saying is that it isn’t right now applying its rationale to more religious uses of funds. The Court’s rationale in the case is that denying government funding based on religious status is subject to the “most rigorous scrutiny.” That test would presumably apply to any denial of government funds to religious organizations. Who says that avoiding Establishment Clause concerns is a compelling interest? So, Footnote 3 rings somewhat hollow.
That got me thinking – when has the Court as used similar limiting language in other opinions, and what has been the effectiveness? The two big cases that come to mind are Bush v. Gore and U.S. v. Windsor, the Defense of Marriage Act case. Both times, the Court’s attempts to limit its Opinion to its particular facts was not very effective, but its up for debate if it was actually intended to be, or whether it was a way of placating certain members of the Court.
II. Bush v. Gore: “You Guys Should Just Totally Ignore What We’re Saying Here.”
We all remember Bush v. Gore. Considered by many to be a disgracefully political moment for the Court, the case was technically about whether “the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Court found an Establishment clause violation, but instead of treating its opinion like any other, the Court tried to avoid giving precedential value to its own opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Being embarrassed about the logic of one’s argument typically doesn’t help the legitimacy of said argument, but hey, there was a presidential election to be decided.
Regardless of the Court’s intent, Bush v. Gore has now been cited repeatedly, and CaseText lists 337 cases referencing or citing to it. While that’s not nothing, another big case from 2001, Kyllo v. United States, has been cited 1,060 times, though that’s one with more applicability than Bush v. Gore. On the other hand, a big case from OT1999, Boy Scouts v. Dale, has only been cited 309 times. So, it’s fair to say that Bush v. Gore has indeed been cited with some degree of normalcy.
III. U.S v. Windsor: Justice Scalia Is Bad At Checkers And Worse At Chess
Then there’s U.S. v. Windsor, the DOMA case. There, the Court was tasked with determining whether a federal law not recognizing same-sex marriages violated the Equal Protection and Due Process clauses. Famously, after the Court provided a number of reasons why refusal to recognize same-sex marriages violated the Due Process Clause of the Fifth Amendment, the Court then ended its Opinion by stating, “This opinion and its holding are confined to those lawful marriages.” This was intended to mean that the opinion did not apply to states’ non-recognition of same-sex marriages and only applied to federal non-recognition.
This was laughably transparent at the time, and everyone and their mothers (plural) knew that the court was eventually going to find that states’ prohibition of same-sex marriage was unconstitutional. The Court just spent 25 pages (adeptly and convincingly) explaining the obvious reasons why refusing to recognize same-sex marriage was blatantly unconstitutional. Then the Court ends the opinion with, “oh yeah, we are only talking about the federal government here (wink).”
In his dissent, Chief Justice Roberts saw what was obviously going on, but didn’t take the bait. Seeing that lower courts would inevitably use the majority opinion’s logic in subsequent same-sex marriage cases against states unless the court’s limiting language was taken seriously, the Chief Justice tried to convince the world to take the majority at its word: “But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further… In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt.” Ok, sure.
While the Chief Justice played chess, Justice Scalia played checkers. Justice Scalia essentially wrote future plaintiffs’ briefs for them, explaining how the rationale of the majority opinion could in fact be applied in challenges to states’ same-sex marriage bans. He went so far as to cross out references to DOMA in the majority opinion and insert “the state’s laws”, thus demonstrating how the majority opinion really does demonstrate why same-sex marriages bans are unconstitutional. Pointing out the obvious – which everyone else was smart enough to understand but not verbalize – Justice Scalia’s dissent was ultimately used by countless lower courts to demonstrate why state same-sex marriage bans were indeed unconstitutional.
Honestly, I find it hard to believe that Justice Kennedy didn’t know at the time that he believed all same-sex marriage bans to be unconstitutional. After all, two years later to the day, he wrote his opinion in Obergefell striking down all same-sex marriage bans. More likely, the language in Windsor was intended to try and placate conservative justices. Obviously, it didn’t quite work, but it also didn’t matter.
IV. Alright, Back To Trinity Lutheran
This gets us back to Trinity Lutheran. I have a feeling that Footnote 3 was negotiated to placate Justice Kagan and possibly Justice Kennedy. The Court recently did something similar in LA v. Mendez, an excessive force case, where it had a random, un-numbered footnote basically saying that the Court wasn’t holding that the particular facts of the case constituted reasonable force; rather, if a lower court finds that the force used was reasonable, then the plaintiff had no other avenue of maintaining an excessive force claim.
It seems inevitable that the Court will again revisit the issue of governments refusing to fund religious organization’s religious use of funds, and the need to draw clear lines will become more important. So, the Court’s logic here may indeed be used later. The Chief Justice does that adeptly – using his own logic in a prior case as a jumping off point to ultimately do something big and conservative. For example, he used his own rationale in Northwest Austin v. Holder to ultimately strike down the Voting Rights Act’s pre-clearance provisions four years later in Shelby County v. Holder. Again, chess not checkers.
So, at this point, it remains to be seen what the ultimate effect of the Court’s Opinion in Trinity Lutheran will be, and same with Footnote 3. But, don’t be surprised if a few years down the line, the Chief Justice sheds that footnote and uses this case to find for religious institutions in cases down the road.