Religious Freedom and Hard Cases in the 4-4 Court

by Eric Segall
About a month before Justice Scalia passed away last February, the Supreme Court voted to hear an important case raising fundamental questions about the separation (or not) of church and state. The Missouri Constitution prohibits any and all public money going to religious institutions. A church school challenged this categorical exclusion when denied an opportunity to compete for state money to improve the safety of school playgrounds. The lower court upheld the exclusion, which exists in one form or another in many other states. The case is so difficult because, while all the Justices likely agree that state aid cannot go to core religious instruction, and while all the Justices also likely agree that police and fire protection cannot be denied to churches, temples and mosques simply because of their religiosity, this case falls right in the middle of those extremes. 

Although the Court took the case over a year ago, it has yet to schedule oral argument, presumably because the Justices are likely deadlocked on the difficult issues. I fully understand that deadlock. On the one hand, denying all but the most basic public aid to religious institutions feels harsh and discriminatory. In fact, this specific Missouri law enacted towards the end of the 19th century had its origins in anti-Catholic prejudice.

On the other hand, defenders of the Missouri law, and others like it, argue that allowing churches, temples and mosques to compete for public money against each other, and against non-religious institutions, could cause significant religious strife leading to potential violations of the First Amendment's Establishment Clause or its stricter parallel state constitutional provision. In addition, these statutes have a long history and for those concerned about the role of tradition in constitutional interpretation, the invalidation of such laws would amount to overly aggressive judicial review. The most relevant Supreme Court precedent, Locke v Davey, upheld a similar program in which the State of Washington prohibited generally available scholarship money to be awarded to students studying to be ministers. Yet, not using public money for the education of religious officials feels much different than the categorical exclusion of all religious institutions from any but the most needed public aid.

So this case is truly hard, and I express no opinion about its proper outcome. My purpose in writing this blog post is to suggest that the country as a whole is better off with the Court not deciding the case at all, which would likely be the result if the Court were to stay evenly divided among partisan lines.

Had the case been decided while Justice Scalia was still alive, there is every reason to think the Court would have struck down the law 5-4 (assuming Justice Kennedy would have voted that way). Had Merrick Garland been confirmed, the smart money would have been on the Court upholding the law. Now, with Trump getting the next pick, the odds are the Court will strike the law down if the case is not moot (there is talk Missouri may not enforce this law anymore). In other words, who is the ninth Justice likely makes all the difference in this case.

Leaving aside one's view on how the controversy should be resolved, is the country better off with the case being decided 5-4 in one direction or the other or better off with the potentially different rules in different circuits where court of appeals judges will also likely divide on this difficult question? My argument is that this case is so close and the need for uniformity so weak, that there is much to gain by recognizing that the Justices should not make national policy on these type of hard issues by a 5-4 vote along partisan lines.

People may prefer one result or another in this case but few would argue the result is obvious from text, history or precedent. How each Justice, or lower court judge, votes would likely depend more on their own personal views on the proper relationship between church and state than legal analysis. That being the case, isn't it fair to ask why we need a national rule preempting state decisions on this difficult matter? If Missouri wants to adhere to strict separation of church and state while other states do not want that separation, the justification for federal intervention seems small. Of course, court of appeals judges may decide to strike down such laws but at least those judges are regional decision-makers not national decision-makers, and they are generally much more versed in local law, values, and context than the Justices who spend their entire working lives in the nation's Capitol.

If the Court intervenes in these kinds of cases by a 5-3 vote, which on the present Court would mean by definition a non-partisan vote, that result seems just a bit less incongruous. For that to occur, at least one Republican would have to vote with the Democrats or vice-versa, which suggests the decision isn't completely partisan. Moreover, 5-4 decisions along partisan lines are much more vulnerable to critique and later overruling than decisions where one or more Justices apparently abandons his partisan principles to reach a favored result.

Of course many folks would likely argue that this analysis applies equally to issues like same-sex marriage, free speech, and abortion where five-to-four majorities have displaced state and federal decisions even though the governing law is much less than crystal clear, My response is exactly right. National policy on fundamental questions that divide us a country and which are not resolved by clear constitutional text or paradigm cases should not be made by a bare majority of unelected, life-tenured judges unless there is a need for uniformity for uniformity's sake. But those cases are rare.

Whether one is liberal, conservative, or somewhere in between, we are all better off if the power to strike down state and federal laws is dispersed among hundreds of lower court judges who are geographically and politically much more diverse than our nine national Justices. If a national rule is desperately needed, the Justices, through compromise and bipatisanship, will find a away. If not, we should insist on more than a one-person majority before important political decisions are reversed by our highest legal tribunal.