by

The last day of the Supreme Court term never disappoints on drama. And this morning, the drama related to the First Amendment and religious liberty. Religious school funding, bakery objections to same-sex weddings, and President Trump’s Travel Ban — major action on all three fronts happened today.

First, the Supreme Court (after stalling for half a year) issued its long-awaited Trinity Lutheran decision. The Court held, 7-2, that denying a church’s application for shredded tires for its playground surfaces — on the sole basis that the playground belonged to a church — violates the Free Exercise Clause of the First Amendment. “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

We should expect to see dozens of new lawsuits this summer seeking to enforce the Supreme Court’s reasoning. The effect of the Trinity Lutheran decision is that dozens of state laws around the country prohibiting governments from aiding or funding religion (even if similarly situated non-religious non-profit organizations can receive those same government benefits) are about to be struck down. Most of these laws are more than a century old and were enacted in order to promote Protestant-focused state schools over Catholic private schools.

Although some questions remain — such as the extent to which governments can still decline to give funding to purely religious activity — the overarching rule is that the government must treat churches neutrally as compared to other organizations when dispensing government grants for basic services. In the next few years, expect to see an uptick in the number of and funding levels for religiously-affiliated private schools.

Second, the Supreme Court (after stalling for half a year) agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission. This is one of the classic “refusal to bake a cake for a same-sex wedding due to religious objections” cases. With the addition of Justice Gorsuch to the Court, the expected outcome is that the Supreme Court of Colorado will be reversed, and the bakery will be permitted to refuse to bake same-sex wedding cakes.

The interesting question to watch is whether the Court will let bakers refuse to make wedding cakes on Free Speech or Free Exercise grounds. The Free Speech argument is significantly stronger — the theory is that the Government can’t force an individual artist to create artistic expression that contradicts his or her beliefs. More significantly, a ruling on this ground would not allow every store owner in America to state a “religious” objection to serving people (i.e. races, genders, religions, and sexual orientations) they disagree with. Rather, the store would first have to prove it was providing an individualized and artistically expressive service. So bakeries and photographers would likely qualify — but pizza shops, craft supplies stores, hoteliers, and more “fungible” retail commodities would not.

The Free Exercise Clause argument is weaker. This is because Colorado’s public accommodation law — i.e. its requirement that private businesses cannot discriminate on the basis of race, gender, religion, sexual orientation, etc. — is a general law that does not target any religious conduct specifically. For nearly 30 years, such general laws which incidentally affect religious beliefs have been consistently upheld. [1]

But it is possible the Supreme Court could use Masterpiece Cakeshop as an excuse to jettison or significantly scale back these 30 years of jurisprudence. The Supreme Court could hold that the bakery has a constitutional right under the Free Exercise Clause to refuse to bake a cake for same-sex couple. That would be a landmark decision and a huge shift in the law. In footnote 2, Trinity Lutheran today may have just signaled the Supreme Court’s openness to going down that path. (“[Not every] application of a valid and neutral law of general applicability is necessarily constitutional under the Free Exercise Clause.”).

Third, the Supreme Court (after dramatically condensing its ordinary procedures) consolidated and then agreed to hear two challenges to President Trump’s Travel Ban. The cases are set to be argued when the Court returns in October.

But in a twist, the Supreme Court permitted President Trump to resume banning the entry of foreigners from the six affected countries, if they have no prior connection to the United States. Per the Court: “In practical terms, this means that [the Travel Ban] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.” Somewhat scarily, three Justices dissented from even that — they thought the injunction against the Travel Ban should only stay in place as to the specific parties before the courts in specific cases. [2]

This partial-lift has the potential to prompt mass litigation chaos over the summer. The Trump Administration may attempt to deny visas to and block the entry of foreign nationals without “credible” enough connections to the United States. Meanwhile, the ACLU and other organizations will be rushing to substantiate those “credible claims” by seeking to certify specific lists and classes of foreign nationals with such demonstrated United States connections.

We’re in for a wild ride.

[1] The most prominent “religious freedom” victories over the past decade have won when the religious objectors can take advantage of a Religious Freedom Restoration Act. These are special federal and state laws that allow individuals to object to any government action that “substantially burdens” their religious beliefs. It was under the federal RFRA that Hobby Lobby won five years ago. Hobby Lobby was the Christian owners’ challenge to the Obama Administration’s requirement that private employers must provide insurance coverage for contraception. Colorado has never passed its own Religious Freedom Restoration Act, which would provide a heightened level of protection for all religious objectors, including potentially the baker here. Colorado’s last attempt to pass such an Act failed earlier this year.

[2] Considering that these same three Justices (Thomas, Alito, and Gorsuch) are usually among the strongest in terms of religious liberty and joined the majority in Trinity Lutheran, court-watchers should be concerned that they may not view the Second Coming of the Travel Ban as a “religious liberty” case at all.