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.


Joe said...

I think judges (sic) of all types have wide discretion in practice but overall do agree that to me this case should not have been taken.

I don't know how the principles of the majority opinion (joined by Kagan, who in the ministerial case had a strong concurrence, so not really surprised) will be applied in practice. Given RFRA and so on (plus the cakeshop grant), I think the dissent probably is right to be worried.

But, if they wanted to decide these questions, surely there were less moot cases to do so. OTOH, the facts here look bad, so it helps one side.

David Ricardo said...

There is a faction in both the public body and at the Supreme Court that believes in direct government support of religion. They believe in interpreting the Establishment Clause in the most narrow way possible and also believe that public policy is best served when government supports religions and religious practices, well at least some religions, Christianity yes, Muslims no.

The reason the case was not ruled moot had nothing to do with law, which as pointed out here would have required the case to be rendered moot, but with the fact that those who seek to merge government and religion saw a sure fire win here. For those who believe this case was decided by judges neutral with respect to religion and government I have a bridge that links Manhattan and Brooklyn to sell you.

Fred Raymond said...

"...this case falls in the middle of those easy cases."

I don't understand why this is a hard case. Using my taxes to fund a Lutheran playground is an easy case: Never. That's what their tuition is for.

I find myself bordered on speechless that this has happened. What David Ricardo says above.

Joe said...

The decision here puts forth a general rule against discrimination, so is not very helpful regarding supporting "some religions." Muslim playgrounds are covered too. A recent Supreme Court case, e.g, involved Muslims choosing certain types of beards.

There are nuances on how the money is spent here as Sotomayor noted and in other cases -- see how certain beliefs about abortion affects general government funding -- so the basic idea in practice has some bite.

I read the opinions. Roberts makes things sound easier than they are; helps that he simply ignores Sotomayor's dissent. As to funding religious schools, it is complicated in that for some time that is allowed in certain respects. Maybe, one thinks the precedents (back to government funds to bus children to those playgrounds) are wrong. Still, they are there.

Joseph said...

It is an interesting legal argument on a matter that, as you say, has "been manipulated by the Court over and over to reach whatever result the Justices prefer that day." If I were to study and consider the issue further, I might agree with you. Yet, there is always going to be strong temptation to create exceptions (eg Roe; Friends of the Earth) and later attempts to distinguish those exceptions will ring hollow. So unless the conservative and liberal Justices adopt a very strict approach under which the Court is willing to turn its back on sympathetic plaintiffs, I don't know how your view would reasonably be expected to gain a foothold. I do appreciate you taking the role of patron scholar of lost causes in a non-partisan way like this (as on the Court balancing idea).

You attempt to distinguish the case, Friends of the Earth, relied upon by the Court today, but that case's reasoning does not appear to hinge on the existence of civil penalties (the injunction and the penalties were analysed separately with the Court holding that standing could exist for both separately). In Friends of the Earth, authored by Justice Ginsburg, the Court set a high bar for determining "post-commencement mootness." The Court also put distance between mootness and standing. Today's decision appears to be cut from the same cloth. In Friends, Scalia, dissenting, took aim at the Court's machinations on standing and mootness, and declared, "I dissent from all of this." It is too bad such a voice was not around today but I think it not accurate to say that today's decision was a departure from principle (as established by modern precedent).

Today's dissent was so unfortunately flippant ("To hear the Court tell it, this is a simple case about recycling tires to resurface a playground.") that I don't know it did any good. When the Court very explicitly frames its decision as a religious liberty decision and by a 7-2 vote, I think it would have behooved the dissenters to take a more engaging approach to the Court's argument. I am reminded of Larry Tribe's early critique of Sotomayor, since retracted by him.

David Ricardo said...

Anyone who thinks the direct uses of public resources for religious purposes will be non-discriminatory should visit a situation in Texas where the AG became concerned because a room set aside for prayer was being used by horror upon horrors, Muslims.

From the WaPo:

"The Texas attorney general’s office — famous for once suing a middle school principal to keep a Bible quote on a door — sent the Frisco school district superintendent a letter Friday raising “concerns.”

“It appears that the prayer room is ‘dedicated to the religious needs of some students,’” a deputy attorney general wrote in the letter, quoting an article written by an 11th grade student, “namely, those who practice Islam.”

Yep, those pesky Muslims exercising their religious freedom the same as other groups in a school in Texas. Don't they know those resources are meant for Christians?

Joe said...
This comment has been removed by the author.
Joe said...

Today's dissent was so unfortunately flippant ("To hear the Court tell it, this is a simple case about recycling tires to resurface a playground.") that I don't know it did any good. When the Court very explicitly frames its decision as a religious liberty decision and by a 7-2 vote, I think it would have behooved the dissenters to take a more engaging approach to the Court's argument. I am reminded of Larry Tribe's early critique of Sotomayor, since retracted by him.

It won't do much good if all you are going to do is quote a single sentence.

Sotomayor explained why she felt religious liberty required a different rule. She didn't simply flippantly make an assertion. The majority did treat it as a simple case, one that was a little over ten pages long. Sotomayor explained why she disagreed. She engaged with the different opinions, taking their position seriously and refuting them with her own opinions.

What more do you want her to do if she disagreed with their approach? In comparison, the majority did not "engage" with the dissent. It did not -- as is normal practice -- cite various of its arguments and explain why it disagreed. But, SOTOMAYOR apparently is the problem? The citation of Tribe is telling -- he was called out for selectively targeting Sotomayor for doing what many judges do. The sentence cited is far from atypical, especially in a dissent.


As to taking the case, I think Eric Segall has a pox on both houses sentiment. But, some cases are different than others. Roe was a class action; Texas continued their strict abortion ban & pregnancy was a continual possibility. Here, there was some chance the state might change their mind but it is not quite the same thing, especially the difference between a pregnancy and some sort of fiscal grant.

Shag from Brookline said...

To what extent, if any, were the views of other states with similar constitutional proscriptions presented to the Court? Was the fungibility of money discussed?

Jim Layton said...

Your list of reasons posited for the case not being moot omits a significant one: Under Missouri law, a taxpayer has standing to challenge the legality of the new policy. Indeed, the Court's decision doesn't preclude such a suit. The Court did not declare the Missouri "no aid" clause unconstitutional on its face, only as applied when it barred a church preschool from a grant that a private, non-religious preschool could get. The taxpayer would argue that the Court's decision permits Missouri to comply by simply barring private preschools from the program, whether they are religious or not.

Joe said...

The Supreme Court today sent a few cases back to be re-examined in line with the result. The cases involving secular textbooks and scholarship programs.

We shall see how this goes down the road.

Fred Raymond said...

Shag wrote: "Was the fungibility of money discussed?"

Exactly what I was thinking. Yes, they just want some money for the playground, nothing religious about that, is there? Never mind the fact that it frees up cash internally, which you know has to have been the whole idea in the first place!

I realize I'm naïve about this, but it just seems very much like state support of religion. This is really OK?!