Monday, June 26, 2017

Trinity Lutheran and the Death of the Case or Controversy Requirement (Until it Lives Again)

By Eric Segall

Of all the Court's zigzagging, implicit reversals, and outright reversals permeating constitutional law cases, perhaps the most incoherent doctrine of all is justiciability. Legal scholars across the political spectrum agree that the Court's standing, ripeness, and mootness doctrines have been manipulated by the Court over and over to reach whatever result the Justices prefer that day. These three doctrines derive from Article III's requirement that all federal cases involve a "case" or a "controversy." Before today, one thing that we thought was true was that the Justices would not decide advisory opinions or hear hypothetical disputes where both parties are in complete agreement on all the issues in a case. Sadly, even that rule is no longer true,

Today the Supreme Court decided Trinity Lutheran Church v. Comer, an important case raising high stakes about the separation of church and state. The Missouri Constitution has prohibited any public money going to religious institutions since the 19th century. Trinity Lutheran challenged this categorical exclusion when it was denied an opportunity to compete for state funds to improve its playgrounds. The lower courts upheld the state constitutional provision which exists in many other states. The case is difficult because, while most people agree that state aid cannot go to the religious mission of private schools, and while most people believe that police and fire protection cannot be denied to religious groups simply because of their religiosity, this case falls in the middle of those easy cases. The Court's decision that the law violated the Free Exercise Clause is extremely important but I will leave it to others to flesh out those implications. My complaint is that the Court should never have decided this case.

After the church was denied participation in the grant program solely on the basis of the state's categorical exclusion of religious groups from public funding, it sued and asked for prospective relief that its applications be treated equally in the future with all other schools. The plaintiff did not ask for damages. A few months ago, the new Republican Governor of Missouri announced that he was changing the state's policy. In the future, he said, religious groups will be treated exactly the same as non-religious groups, which is all the relief Trinity Lutheran asked for in its complaint.

After the Governor made his announcement, the Court asked the parties to file supplemental pleadings addressing whether the case was now moot. Not surprisingly, both the Church and the State, now on the same side of the case, asked the Court to resolve the case because they both wanted a formal decision striking down the state's constitutional amendment. The legal grounds for their request that the Court keep the case on its docket was an exception to the mootness doctrine that a defendant's voluntary cessation of its allegedly illegal conduct does not necessarily moot a case. The Court accepted that argument in a footnote and held that the "Department has not carried the heavy burden of making absolutely clear that it could not revert to its policy of excluding religious organizations. The parties agree." The Court only cited one case for that proposition, and in that case there was a claim for money (not true in Trinity), and one of the parties in that case wanted the Court to dismiss it (not true in Trinity).

The Justices' refusal to dismiss the case once again shows that the Court does not take the "case" or "controversy" requirement seriously. Reciting the magic words "voluntary cessation of illegal conduct does not necessarily moot a case" does not give the plaintiffs in this case a personal injury that can be redressed by the Court. This defendant said he had no plans to resume the allegedly illegal behavior, and there is no reason to think he will.

The parties did make that the argument that a future Governor might go back to the old policy or that this governor might be sued in state court if he wins in the Supreme Court, but neither of those speculations about the future can possibly support jurisdiction. Had both sides brought this case to the Court before Trinity Lutheran Church had been denied funding saying that, even though the state will no longer take religiosity into account, the parties wanted a formal ruling to that effect so that future governors will be barred from changing the policy, there is no doubt the Court would have said it did not have jurisdiction over such a collusive lawsuit. But that is exactly the posture the case was in today.

The mootness and standing doctrines overlap. The Court has said that mootness is "the doctrine of standing set in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout the litigation (mootness)." Although the Court said in the same case that this description is not "comprehensive," the Court has never fully explained how a case where the plaintiff has received all of the requested relief, and the defendant has promised not to continue the challenged behavior, can possibly be a "case or controversy" within the meaning of Article III. I don't disagree that there are a number of cases applying this exception but the exception makes little sense unless there is a strong reason to think the defendant will repeat the illegal conduct. The opposite was true with Trinity Lutheran, and thus there was no dispute left between the parties.

The Court's decision in Trinity Lutheran is likely to radically transform the law of  the free exercise clause. Justice Sotomayor, along with Justice Ginsburg, dissented, saying "this case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both."

The dissenters may be right or they may be wrong but two things are certain: the Court should not have decided this case at all, and the law of  justiciability became even more incoherent.