SCOTUS Hints At Middle Ground In Travel Ban Ruling

On Monday, the last day of the term, the Supreme Court granted cert on the travel ban cases and partially granted the government’s petition for a stay, meaning that portions of the travel ban will go into effect. The court issued a per curium opinion explaining its decision (while avoiding the substantive issues). Gorsuch, Thomas and Alito partially concurred (they wanted a full stay). That cert was granted was not surprising, but certain aspects of the substance and breakdown of the court’s opinion were telling.

The primary takeaway is that the scope of the stay closely tracks the plaintiffs’ theory of the case on the constitutional issues while also suggesting that the court is not inclined to find in the plaintiffs’ favor on the statutory issues. In terms of the stay, the Court allowed the government to bar those individuals with no “bona fide” connections to the United States, but did not permit the barring of those with said connections. This is interesting because it mirrors Plaintiffs’ constitutional arguments and suggests that the Court will find in Plaintiffs’ favor on the Mandel/Din test that has been the focus of much of the briefing by the parties.

As explained before, the two main substantive issues  are that 1) the ban is invalid statutorily, in its entirety, and 2) that it is invalid constitutionally, for those with connections to the United States. The Fourth Circuit relied on the constitutional claim while the Ninth Circuit relied only on the statutory issue, ruling that Trump simply lacked the authority to issue the travel ban. Such a statutory ruling would necessarily invalidate the entire travel ban. I had suggested that the statutory issue may be an attractive option for the court since it would avoid ruling on the constitutional issues.

But, from the looks of it, I am probably wrong, and the Court seems destined to rule on the constitutional issues, on Plaintiffs’ terms. Although the government argued that the courts did not even have the power to review the ban, ultimately most observers agreed that the constitutional case would ultimately come down to a test set forth in two cases, Mandel and Din, which I have described before. Notably, however, because the Supreme Court has repeatedly ruled that non-resident, un-admitted aliens possess no constitutional rights themselves, only those in the United States with connections to the aliens would have standing to sue. When such connections do exist, the court evaluates the claim by determining whether there is a “facially legitimate and bona fide reason” for the ban. The plaintiffs have argued that the government’s reason was not bona fide because it was actually motivated by anti-Muslim prejudice; obviously the government disagreed, and the key issue in this case is probably whether the government can prove their bona fide reason.

That gets us back to the scope of the stay. The Court declined to continue the injunction against the ban entirely, which it probably would have done had it thought that the statutory argument had merit. Instead, the Court allowed in those with connections to the U.S.; in other words, those who could win under the Mandel/Din test are protected, while those unprotected by such a test are similarly unprotected by the injunction.

A fight squarely on the “bona fide” requirement is not what the government wants at all. In its initial arguments on the original EO, the government bizarrely argued that the courts do not have the authority to review the travel ban at all, and then the next round argued that the travel ban was valid because it was authorized under statute, conveniently ignoring that the constitution trumps (sorry) statutes. Discussing the bona fides of the government’s reasoning opens it up to a discussion of Trump’s public statements. The fact that the Court evaluated the stay petition, implemented it partially, yet kept the injunction in place as to this aspect does not bode well for the government.

It bears noting that Justices Thomas, Alito and Gorsuch dissented to that portion of the ruling, believing that the entire lower court injunction should be stayed, and that thus the entire travel ban should be put into effect. At this point, you have to assume that the government already has three votes going into oral argument.

Finally, the Court also ordered briefing on whether the travel ban litigation became moot on June 14, when the travel ban technically expired. This mootness issue was raised by the State of Hawaii at the Supreme Court and touches on a bigger problem for the government: the stated purpose of the ban was to provide the government time to conduct a review, and it has had – and will have had – plenty of time to conduct a review. Thus, by the time the case is argued, why is the ban even necessary at that point? As I (and many others) wrote a couple weeks ago, the DOJ has put itself in a pickle here, and the mootness issue suggests that the court is cognizant of that fact. The Court even noted in it opinion that the government did not ask for expedited argument. The government may have a hard time arguing that the ban has any purpose being applied prospectively.

Further, the Court may see this as a way to ultimately give both sides what they want. After all, argument will be four months from now, longer than the actual ban itself. So, over the summer, the government will effectively get its travel ban, for those with no connections to the United States. Then, at that point, the court would presumably be saying that the travel ban is no longer in effect and the lower court rulings prior to June 14 would remain good law. 

Look, obviously, the ultimate ruling on the merits will not automatically mirror the scope of the stay, and the addition of a question presented does not guarantee a particular answer to that question. So, take all of this with a giant grain of salt (Maldon or pink Himalayan, both known for their size, are probably the way to go here). But, both of my observations above – about the scope of the stay and the addition of the mootness question – suggest that the court is trying to forge a middle ground.

-Ryan

SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.

Trump Travel Ban, Part Infinity: Yossarian Edition

I wrote earlier this week about how the Ninth Circuit’s ruling on the travel ban would affect the proceedings in the Supreme Court. When discussing the narrowing of the injunction to permit the White House to conduct an internal review of visa screening procedures, I argued that it would now be incumbent on the Trump Administration to promptly commence such a review or else risk blowing up the facial raison d’être for the ban. I still believe that to be true. However, after reading subsequent filings by the parties in the Supreme Court and commentary regarding same, I have realized that the narrowing of the injunction places the White House in a much bigger pickle than I initially believed.

As background, Trump’s stated reason for the original 90 day travel ban and its successor EO was that the White House needed to conduct a review of visa vetting procedures. In a well-reasoned tweetstorm, the indispensable and increasingly omnipresent Steve Vladeck aptly explained the government’s stated reason for the ban: “the travel/entry ban was not an end unto itself, but a means to help carry out the real goal of the EO: new vetting rules.” (Yes, I just quoted a tweet, but that seems perfectly legitimate given the subject matter. The Ninth Circuit says they’re admissible now.)

While the original ban itself was enjoined by the Western District of Washington before it ever began, the review process was not, and the White House remained free to conduct such a review. Once a new travel ban was announced, the District of Hawaii then implemented an injunction which not only blocked the ban but also blocked the review process from occurring as well, roughly 45 days after the first EO’s review was to initially begin. As of the Ninth Circuit’s ruling on Monday, however, the DOJ is now free to proceed with the review. As noted above, the Trump Administration needs to begin this review or else it proves that it was merely pretext for the ban. Indeed, today the DOJ has indicated that it will now conduct the review because of the Ninth Circuit’s narrowing of the Hawaii injunction.

However, Vladeck pointed out that by conducting the review, the Trump Administration undermines the entire purpose for the ban. If the White House is indeed able to conduct this review process now, then why was the ban ever actually necessary? The whole point was to conduct the process that it is now conducting without such a ban being in place.

This point is compounded by the fact that the DOJ has not asked for expedited argument. This means that the 90-day review period will surely have concluded prior to a decision by the court. At that point, what is the point of the travel ban at all? The ban was to facilitate a review process which will have already concluded by the time the court decides the issue.

Hawaii’s counsel yesterday made a similar point: because more than 90 days have passed since the original EO and nearly 90 days since the second EO, this whole case will be moot by the time it gets to the Supreme Court. While I do not think that this argument holds water especially given the Hawaii stay of the review process, the point is clear: the Supreme Court will be deciding the fate of a travel ban which would have – on its face – already concluded had it been allowed to run its course.

This puts the White House in a Catch-22. If it does not conduct the review, then it risks destroying the stated rationale for the ban. If it does conduct the review and the ninety-day period concludes, then the ban is no longer necessary. The one acceptable middle position would have been to seek expedited argument so that the review would be ongoing at the time of argument, but the DOJ elected not to take this tact.

The DOJ could and likely will argue that while it is conducting its review now, said review will not be fully efficient or effective until a shutdown is implemented. But oral argument may not be until October, nine months after the original ban; can the DOJ credibly argue at that point that its ability to conduct a review which would have taken three months under optimal conditions has been so hamstrung that it couldn’t be completed in nine? I don’t think so.

Vladeck does seem to suggest that the DOJ was simply wrong in commencing the review process, which in turn would mean that the Catch-22 I described above wouldn’t really exist. I disagree. The argument that the White House is conducting a review – albeit a hobbled one – is much stronger than simply doing nothing when it is permitted to act. Conducting the review now, immediately after the Ninth Circuit’s narrowing of the injunction, is the one bit of urgency that the DOJ or White House has expressed during this saga. It makes more sense to argue that it had a national security imperative to begin a flawed review immediately rather than waiting for the Supreme Court to enable an unfettered review many months from now. Regardless, neither way is optimal, and that’s my entire point – the DOJ is now in prime “damned if you do, damned if you don’t” territory.

Finally, this situation is one of the White House and DOJ’s own making. Their stated rationale for the ban was the urgent need to conduct a temporary review of vetting procedures, in the name of national security. That rationale probably doomed the ban from the start, because it lit a ninety-day fuse for the destruction of the ban’s stated usefulness. The White House and DOJ also bungled the rollout, failing to actually conduct such a review in the 45 day window it had, and then repeatedly refusing to take steps to expedite the inevitable path to the Supreme Court. The DOJ’s dilly-dallying – knowing that the clock was ticking until the court’s summer recess, not seeking immediate Supreme Court review, not asking for expedited argument, and then asking in mid-June for a delay in briefing (!) – undermines its own arguments that this is an urgent national security concern.

Ultimately, the White House may still win at the end of the day. But if they do, then it seems likely that such a result was preordained from the start, since neither the White House nor the DOJ has done themselves many favors.

-Ryan

Ninth Circuit Affirms Injunction Blocking Trump Travel Ban 2.0

On Monday, a Ninth Circuit panel mostly upheld the preliminary injunction against the Trump travel ban. Notably, the court did three things which were ostensibly designed with an inevitable Supreme Court showdown in mind: 1) it did not reach the constitutional issues, instead relying entirely on statutory grounds; 2) it struck down the ban without relying on Trump’s campaign statements, and 3) it slightly narrowed the scope of the injunction. These are all important, as will be set forth below.

I. Taking The (Statutory) Road Less Travelled

Much of the buzz about the travel ban has dealt with its constitutionality – whether it violates the Establishment Clause of the First Amendment. However, the travel ban has also been challenged on statutory grounds. While the Fourth Circuit’s ruling addressed only the constitutional issues and did not reach the statutory issues (as did the Ninth Circuit panel in the travel ban 1.0 case), the Ninth Circuit’s ruling this week did just the opposite. It was the first appeals court decision on either travel ban to address only the statutory arguments.

This is important because it lets the Supreme Court do three things that it loves to do: let issues “percolate” in the lower courts before taking them, exercise constitutional avoidance, and avoid sweeping devisions with unwanted or unintended consequences.

A. It’s Time For The Percolator

First, the court loves to let lower courts weigh in on big issues first. For some reason, every Supreme Court analyst and their mother refers to this as lower court “percolation”. Essentially, what lower court “percolation” means is that the Supreme Court does not like taking cases until at least one appeals court decides it first. It is quite likely that the Supreme Court would have wanted the thoughts of the lower courts on the statutory issue, but prior to this week no appeals court had decided either travel ban on statutory grounds. That has now changed, the statutory issue has been percolated, and the Supreme Court is now ready for its morning coffee.

B. Avoidance Like the Plague

Second, the court loves to avoid deciding constitutional issues when it can. Similarly, the court typically seeks to avoid controversial or deeply political issues, which it fears may affect its legitimacy. A ruling on statutory grounds would let the Supreme Court avoid a sweeping constitutional ruling and also partially mitigate the inevitable political fallout from its decision. Thus, the Ninth Circuit has provided the Supreme Court with a roadmap to strike down the travel ban while doing so on narrow, more palatable terms.

C. “We Write Some Words…”

Relatedly, the Supreme Court also tends to avoid issuing sweeping opinions with unforeseen or unwanted ramifications beyond the facts at hand. As Justice Breyer stated during oral argument in another case this year, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell – that its rationale will be applied to circumstances well beyond just the facts of the particular case being decided.

A broad ruling on the constitutional issue would then apply to many other contexts, from subsequent presidents’ immigration decisions to equal protection claims generally. Trump’s presidency, obviously, is quite different than most presidencies; the Supreme Court will not want its opinion here to hamstring future presidents in engaging in run-of-the-mill immigration decisions or national security determinations. Essentially, the trick is to strike down the travel ban (if it is so inclined), while limiting the applicability of this ruling to different contexts. That is easier said than done.

II. Trump’s Campaign Statements

The issue of unwanted consequences also arises when discussing Trump’s campaign statements. Unlike the Fourth Circuit, the Ninth Circuit did not rely on Trump’s campaign statements in striking down the travel ban. There is a very real concern that the court’s reliance on Trump’s campaign statements will open the doors to using campaign statements against public officials in all sorts of litigation pertaining to government decision-making. The Supreme Court will be loathe to weaponize campaign statements by political candidates, and it will avoid using Trump’s campaign statements entirely if it can. To that end, the Ninth Circuit omitted such references. Again, this signals to the Supreme Court that it can strike down the ban while staying out of the thorniest part of the thicket.

III. Narrowing the Injunction

Lastly, the Ninth Circuit narrowed the scope of the lower court’s injunction, in that it now permits the White House to conduct an internal review of visa vetting procedures. This review served as the facial reason for the ban, which was to last 90 days (and 120 days for the Syrian refugee program) while the review was conducted.

Today, the clock begins ticking anew. At this point, there is no evidence that such a review ever began in the first place, but the government may have gotten lucky when it was barred from doing so by the District of Hawaii. Now, that excuse melts away, and it will be incumbent on the government to begin that vetting review in earnest. In the Supreme Court, the plaintiffs will certainly argue that if the ban was really about the review process – and not just pretext for banning Muslims – then the review would have begun immediately and would already be concluded. If there is little or no evidence that such a review has taken place at the time of Supreme Court briefing or oral argument, then the government’s stated rationale for the ban will be destroyed.

This aspect of the ruling is also important because keeping the injunction as-is would have certainly given the Supreme Court a good reason to grant certiorari. Barring the President from internally reviewing visa vetting procedures – which does not adversely affect anyone in and of itself – was something that didn’t make much sense. Although the Supreme Court is likely going to grant cert anyway, there is now one fewer reason to do so.

-Ryan

WHERE THE RUBBER MEETS THE ROSARY: The Supreme Court Hears Trinity Lutheran Church v. Comer

Does a playground for two-year-olds advance a religious purpose just because it is run by a church? Is the government justified in denying funding to a church to build that playground, even when the government would provide funding for the exact same playground if it were built by a secular organization? The case of Trinity Lutheran Church v. Comer, being heard this week at the Supreme Court, addresses these questions. In other words, when is a playground more than just a playground?

Used tire scraps – which can be recycled and turned into soft, safe surfaces for playgrounds – are instead routinely discarded in landfills. This not only creates unnecessary waste, it also means that playgrounds are instead covered in cement and other hard, unsafe surfaces for kids. In an effort to kill two birds with one stone, the state of Missouri created the Scrap Tire Grant Program (STGP), a program designed to reimburse non-profit who purchase used tire scraps for their playgrounds. Trinity Lutheran Church, which also runs a religious preschool and daycare center, applied to the STGP to obtain reimbursement for this very purpose.

Despite Trinity’s application ranking fifth among the forty-four applicants for a grant – high enough where the application was surely to be approved – the state of Missouri rejected Trinity’s bid. It did so solely on the basis that the Missouri Constitution forbids public funding of religious organizations. Trinity sued, claiming violations of the First Amendment’s Free Exercise clause and the Fourteenth Amendment’s Equal Protection clause, but it lost in both the district and circuit courts (the panel split 2-1). Cert was granted, and the Supreme Court hears argument this Wednesday, April 19th.

No one disputes that the funds would be used for a seemingly secular purpose: a playground. In fact, it is a playground that children of the community at large also use after school hours and on weekends. However, the government essentially states that it can exclude the church from eligibility entirely because of the Establishment Clause concerns implicated by government funding of religious organizations, even if the conduct at issue by the church is not overtly religious in nature.

This case essentially presents a battle between 1) a state’s freedom to protect its citizens against Establishment Clause concerns and 2) religious organizations’ rights under the U.S. Constitution.  One one hand, the religious liberty side says that religious groups are not seeking special treatment and instead simply do not want to become “second-class citizens” under the law. On the other hand, Missouri argues that every state needs room to protect its citizens from  religious encroachment, in order to preserve the separation between church and state. Both sides have interesting points, and the case essentially presents two favorite conservative causes, state’s rights and religious liberty, and puts them at odds with one another.

Thus, not surprisingly, the case makes for strange bedfellows. The ACLU and certain religious groups are both supporting the government, while many other religious groups of varying faiths are supporting a Lutheran church receiving government funding, which in other contexts might produce outrage by other religious groups. Moreover, one religious liberty scholar supporting Trinity Church even cited Romer v. Evans, a landmark gay rights case, as one of the grounds on which the church could win.

That scholar is Mark Rienzi, professor at Catholic University and Senior Counsel at the Beckett Fund for Religious Liberty. Rienzi and the Beckett Fund are frequently involved in religious liberty cases at the Supreme Court, they wrote an amicus brief for Trinity Church in this case, and Mark graciously agreed to speak with me about this case.

Rienzi essentially asserts that this is a classic discrimination claim – the church is being denied a benefit solely because of its status as a religious organization, and the state admits it. That, to Rienzi, is a lot like other discrimination cases, such as Romer, where the Supreme Court struck down on Equal Protection grounds Colorado’s constitutional amendment preventing the state from recognizing homosexuality as a protected class. As Rienzi stated in our conversation:

“The high level principle is the government can’t exclude you from equal participation based on your status. The core of Romer was that principle. The government can’t exclude you from equal participation based on your status and yet that’s precisely what the state of Missouri is admitting it’s doing to religious groups [in Trinity]. And that that just seems obviously impermissible.”

To be sure, Rienzi also believes that Romer is just one of the ways in which the church can win, and that it also has a strong Free Exercise claim. But, the comparison between religious liberty and gay rights certainly caught my eye.

Ultimately, the most persuasive argument I heard from Rienzi was his comparison to FEMA’s response after Hurricane Sandy. When entire town blocks were destroyed, FEMA did not exclude synagogues and churches from its rebuilding efforts, but rather it helped rebuild these religious organizations just like any other entities that were damaged. As Rienzi stated to me:

“Hurricane Sandy in some towns wiped out the whole block. It wipes out the candy store and the library and the synagogue and something else. And FEMA is going in with grant money to help everybody pump the water out and repair their places. One view of the world says, ‘Oh, you can help the candy store. And you can help the library, it’s a public thing. And you can help the movie theater. But skip the synagogue and go to the next one.’

FEMA, to their credit, came around to the correct answer, which is ‘No, we’re not helping the synagogue in any special treatment for religion kind of way. We’re helping the synagogue because it’s one of the things on the block that got wiped out. We’re helping everything on the block that got wiped out.’ That sort of equal treatment for religion – not treating religion as something that needs to be segregated or mistreated, but instead as something that can participate on equal terms with everything else – that’s what the constitution requires and that’s what Missouri’s getting wrong here.”

That analogy underscores the fundamental point being made: just because an organization is religious does not mean that providing it with government funding will inherently erode the wall between church and state. We aren’t dealing with government funding of new prayer books, we are dealing with tire scraps for a preschool playground. As I said above, sometimes a playground is just a playground.

The case is essentially the polar opposite of a prior free exercise case, Employment Division v. Smith, 494 U.S. 872 (1990). There, when an Oregon man was denied unemployment compensation due to his religious use of peyote, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise clause, even when they incidentally restrict religious conduct. Thus, the peyote ban was constitutional.

The Trinity case is basically the exact opposite – here, the religious organization is engaging in neutral conduct (getting tire scraps for a playground), yet the government is treating it differently solely on the basis of religion. It remains to be seen whether the Court will in turn apply strict  scrutiny or will instead – like in Smith – opt to apply a much lower standard.

Moreover, the case is complicated by a last minute decision by the State of Missouri – under a new administration – to reverse course and grant STGP eligibility for religious organizations. This decision, issued on Friday, only five days before oral argument, does not appear to moot the issues, but it does potentially undercut the government’s argument that the exclusion of religious organizations is necessary to preserve the wall between church and state in Missouri.

How this case falls is obviously anyone’s guess, but it will likely turn on how well Trinity Church can craft a workable rule in its favor. If Trinity were to win, where would the line be drawn? Could governments bar funding for overtly religious conduct but not purely secular conduct? Could governments ban funding for chapel benches but not playground benches? Could it ban funding for matzah but not wonder bread? I think that Trinity has a very compelling argument in the playground context, but crafting a general rule is clearly the thorniest aspect of their position. To that end, Missouri certainly has the easier argument: a bright-line rule banning government funding of religious organizations is simple, it is workable, and it avoids having lower courts sorting out its Malbec from its Manischewitz.

Ultimately, only god knows how this one will end.

Thank you again to Mark Rienzi for speaking with me about this case. I really appreciate it.