The recent case of Trinity Lutheran Church v. Comer raises the question of whether a church can be excluded from a competitive process for awarding state aid—in this case funding rubber floors on playgrounds to protect children when they fall.
The most powerful doctrinal argument for the Church is that a decision in its favor treats the Free Exercise Clause like other constitutional rights. A citizen (or other bearer of rights) cannot be forced to give up something provided by the state because he is exercising a constitutional right, absent a compelling state interest. As Justice Elena Kagan said at oral argument, “it is as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled that funding, to — to that particular funding, whether or not they exercise a constitutional right.”
Justice Kagan was describing the so-called unconstitutional conditions doctrine and she was correct that it is regularly applied across the range of constitutional rights. It is the pull of this doctrine and the felt need to make its application consistent that it is likely to move a very large majority of the Court, including Justices Kagan and Breyer, to rule in favor of the Church.
The arguments made in the oral argument against the doctrine of unconstitutional condition in this case are weak. One was that the program at issue here was competitive rather than universal.
For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.
Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.