Excluding Religion Goes to the Court

Today, the Supreme Court granted cert. in Trinity Lutheran Church v. Pauley. Howard Friedman reports here. The case raises an issue that I have called the question of excluding religion. May a state deny support to religious actors, even when the exclusion is not required by the Establishment Clause, in order to pursue the state’s stricter understanding of nonestablishment? Here is how the petition itself puts the question: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” An aspect of the issue is that some states’ commitment to nonestablishment is articulated in Blaine Amendments, which are provisions of state constitutions rooted, at least in part, in anti-Catholic bias. That troubling facet of the Pauley case has drawn attention in the WSJ and from some legal scholars.