Wrong on Every Count: William Watkins, Jr. on the Trinity Lutheran Case

by Michael Stokes Paulsen

Last week, the Wall Street Journal published a bizarre op-ed by William Watkins Jr. on the Trinity Lutheran Church v. Comer case, entitled “A Case the Justices Shouldn’t Have Heard.”  Trinity Lutheran was argued before the Supreme Court just a few weeks ago, on April 19.  It now awaits decision. 

Watkins argues that the case presents merely a state law issue, never should have been in federal court in the first place, never should have been heard by the Supreme Court, and is now moot.  Essentially everything Watkins says about the case is flatly and egregiously wrong.  Indulge me as I first unpack the case and then Watkins’s errors.

First, for the uninitiated:  Trinity Lutheran involves a Missouri state program, the “Scrap Tire Grant Program,” that provides grants to schools and pre-schools to support the installation of rubber playground surfaces to replace gravel or blacktop.  Trinity Lutheran Church operates a pre-school and daycare. Trinity Lutheran applied for a playground grant, but was denied because its daycare is a ministry of the church Trinity Lutheran was otherwise eligible for the grant.  And there was no serious question that the rubber-playground-resurfacing grant was an entirely secular benefit program.   

The State Department of Natural Resources (DNR) based its rejection of Trinity Lutheran’s application on the Missouri Constitution, as interpreted by the Missouri Supreme Court.  The provision at issue states: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”  

That frames the core constitutional issue presented by the case:  May a state exclude a religious organization from an otherwise neutral, secular government program solely because of the religious identity, values, expression, or mission of that religious group? 

The answer is plainly no (and all indications from the oral argument are that the Court is leaning in this direction):  The Establishment Clause of the First Amendment does not require – and the Free Exercise Clause and Free Speech Clause do not permit – government discrimination on the basis of religion in government programs.  Exclusion of a religious person (or group) from a forum, entitlement, service, or program, for which that person (or group) is otherwise eligible, solely on the basis of religious identity or expression, violates the First Amendment.   

A long line of cases stands for this principle: From Widmar v. Vincent (1981) (First Amendment forbids exclusion of student religious groups from use of state university facilities) to Lamb’s Chapel v. Center Moriches School District (1993) (First Amendment forbids exclusion of community religious group from use on an equal basis of public school facilities, to show a religious film series) to Rosenberger v. Rector and Visitors of the University of Virginia (1995) (First Amendment forbids state university to deny funding eligibility to a campus student religious newspaper based solely on its religious message or identity) to Good News Club v. Milford Central School (2001) (First Amendment forbids exclusion of an after-school religious club at a public elementary school). 

The issue is near and dear to my heart.  Years ago, I won a case concerning the same principle in Minnesota, at the Eighth Circuit, involving state and local school district denial of special education services to children if they attended religious private schools: Peter v. Wedl (8th Cir. 1998).  The Eighth Circuit put it perfectly:  “Government discrimination based on religion violates the Free Exercise Clause of the First Amendment … the Free Speech Clause of the First Amendment … and the Equal Protection Clause of the Fourteenth Amendment.”  (Citations omitted).   

There are a few outlier cases – Locke v. Davey (2004) upheld a state’s exclusion from its scholarship program of students studying specifically for religious ministry. (Locke seems badly wrong, but an aberration: the Court carefully limited the holding to the case’s quite specific facts.)  But in the main, the principle is well established: The First Amendment forbids discrimination against religious persons or groups in government programs.

On the merits, then, the Trinity Lutheran Church case is a fairly easy one. Nonetheless, the lower federal courts got it wrong (the district court dismissed, the Eighth Circuit affirmed 2-1 and denied en banc review by equally divided vote).  One always hesitates to bet on the Supreme Court getting it right, but reversal seems almost assured. 

There is one small procedural wrinkle, which is worth noting (mostly because Mr. Watkins makes such a complete hash of it at the end of his op-ed).  Less than a week before oral argument, Missouri’s new Republican governor, Eric Greitens, announced that, going forward, the state would no longer discriminate against religious organizations in general state grant programs.

This is good news for religious freedom in Missouri.  But the Governor’s Office’s press release stated that it likely would not affect the Trinity Lutheran litigation: “Today’s action by Governor Greitens is not expected to affect the Trinity Lutheran case before the Supreme Court because that case involves a 2012 DNR decision that became final years before the Greitens administration took office.”  

The next day (April 14 – just five days before oral argument) the Supreme Court asked for the parties’ views on whether the governor’s action rendered the case moot.  Both sides agreed that it did not, under the settled rule that “voluntary cessation” of alleged unlawful conduct does not make a case moot.  A subsequent Missouri governor’s administration could change the policy back.  (For that matter, Governor Greitens theoretically could do so.)  The applicable standard provides that such policy shifts do not moot the case unless it is “absolutely clear” that the conduct alleged to be unlawful “could not reasonably be expected to recur.”  Already, LLC v. Nike, Inc. (2013); Friends of the Earth v. Laidlaw Environmental Services (2000). 

The party asserting mootness bears the “heavy burden” of showing that there is no reasonable likelihood of the unlawful conduct starting up again.  Neither party thought that was the case.  Indeed, the Missouri Attorney General’s office argued the contrary: there is a chance the state could return to its old ways.  (Interestingly, the new Missouri AG, Joshua Hawley, recused himself – on the ground that he had filed an amicus brief in support of Trinity Lutheran on behalf of a private client, before being elected AG.)  The AG’s office also observed, astutely, that the Missouri courts could – very well might – enjoin the Governor’s policy on state law grounds, in a state-court taxpayer suit.  The state’s voluntary cessation might itself cease, by state judicial action overruling the Governor.      

(An aside: My practice, back when I was in practice and faced such situations in litigation against state government, was to ask the state to agree to, and the court to enter, a permanent injunction against the prior policy – just to assure no backsliding. “What? You won’t agree to an injunction binding the state prospectively? Then don’t tell me the case is moot!”  The maneuver was designed to keep state governments from playing shell games with supposed mootness.  Sometimes it would also help with subsequent motions for attorney fees pursuant to 42 U.S.C. §1988.)

At all events, the Trinity Lutheran Church case is pretty clearly not moot.  No injunction binds Missouri to its declared new policy and a ruling on the merits would afford the church meaningful prospective, permanent relief against the state  The Justices’ questions and comments at oral argument seemed to indicate that they understood all this fairly clearly. (They did need to ask, however.)

* * * * *

Enter Mr. Watkins’s Wall Street Journal op-ed, which seems not to understand the basics of the federal constitutional claims in the case, the basics of federal question jurisdiction in the federal court system, the basics of Supreme Court appellate jurisdiction, or the basics of mootness doctrine. 

The case “never should have made it this far,” Watkins writes.  The case “would be resolved already had it been handled in state court.”  Watkins asks what the Court was ever doing in federal court, since it involves a challenge to state law and state policy:  “But why this is a federal case [sic]?  Trinity Lutheran is a Missouri church challenging the state’s application of the state constitution.  The grant program is funded by in-state tire sales.  Missouri is neither establishing a church nor interfering with worship.  Common sense tells us the First Amendment is not implicated.”

As legal analysis, this makes no sense whatsoever.  Of course the First Amendment is “implicated”!  Trinity Lutheran Church’s entire claim is that the state’s rejection of its grant application violates the church’s First Amendment rights under the U.S. Constitution.  Of course this case is appropriate for federal courts. A federal constitutional challenge to the validity of state law – including a challenge to a provision of the state’s constitution, as applied – presents an issue of federal law. As such, it falls squarely within the federal question jurisdiction of the U.S. District Courts, under 28 U.S.C. §1331. 

Why is this a federal case?  Because it involves a claimed violation of federal-law rights and the federal jurisdictional statutes give plaintiffs the right to choose a federal district court as the forum to decide this issue. (I expect my first-semester Civil Procedure students to know this by the second week of class.)  Trinity Lutheran chose to file its suit in federal district court.  That’s why the case began in federal court and proceeded to the Supreme Court up the federal chain of appeal. To ask what this case is doing in federal court is to ask a stupid question ,at least for anyone with a law degree.   

Could such a case have been filed in state courts?  Yes. The grant of federal-question jurisdiction is not exclusive to the federal courts.  But to suggest that this means the case would or should have been resolved differently if brought in state courts, or that the U.S. Supreme Court could not have heard it on appeal if commenced in state courts, is utter nonsense.  The merits of the federal constitutional question should (in theory) be decided the same way whether a case is litigated in state or federal courts.  And the U.S. Supreme Court has jurisdiction to review decisions of state courts on federal law issues.  (It has had such jurisdiction, in some form, since 1789 and the constitutionality of such review was upheld unanimously by the Supreme Court in 1816, in the famous case of Martin v. Hunter’s Lessee.)

What could it possibly mean, then, for Watkins to say that the issue “would be resolved already had it been handled in state court”?  Not that the merits of a federal constitutional claim should be resolved differently because the issue is heard by state courts rather than federal courts.  Not that the U.S. Supreme Court would lack jurisdiction to review the state court system’s resolution of the federal law claim.  What then?

Is Watkins saying that there should be no such thing as federal constitutional challenges to the validity of state laws?  The proposition would be absurd – and of course flatly contrary to the Constitution.  Article VI’s Supremacy Clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  

Federal law trumps state law.  Period.  And state judges are constitutionally bound by this rule the same as federal judges are.    

This is basic stuff.  One of the first cases taught in most Constitutional Law courses is McCulloch v. Maryland (1819), which among other propositions teaches the fundamental proposition that valid federal law of any kind prevails over contrary state law of any kind.  And of course every one of the religious freedom cases I noted above, as standing for the principle that state governments may not discriminate against religious persons or groups in their programs, involves the supremacy of federal constitutional rights over inconsistent state law requirements – Widmar, Lamb’s Chapel, Rosenberger, Good News.   

Widmar is especially interesting, as it also was a case arising out of Missouri.  The Supreme Court held that state university students had the Free Speech Clause right to hold religious student group meetings, including worship meetings, at campus facilities of the University of Missouri-Kansas City.  Among other arguments Missouri had made against the students’ First Amendment rights was the claim that the Missouri Constitution’s stricter separation-of-church-and-state provisions required discriminatory exclusion of religious groups from a public forum or a general benefit.  The U.S. Supreme Court dismissed the argument as contrary to the Supremacy Clause, noting that any supposed “compelling” interest in complying with the Missouri Constitution was “limited by the Free Exercise Clause and in this case by the Free Speech Clause as well.” 

McDaniel v. Paty (1978) is another important religious freedom case involving the supremacy of First Amendment rights over state constitutional provisions violating them.  Tennessee’s state constitution barred members of the clergy from holding state legislative office.  The Tennessee legislature applied that prohibition to exclude ministers from serving as delegates to a limited state constitutional convention. The Supreme Court readily struck down Tennessee’s action as a violation of the First Amendment, the justices disagreeing only about how flagrant the violation was.   

Examples could be multiplied.  But the point is simple enough:  First Amendment rights under the U.S. Constitution trump anything to the contrary in a state’s constitution or laws.     

But perhaps Watkins means something more radical yet – not that state law trumps federal law but that the First Amendment should not be thought to apply to actions of state governments. Actually, such a proposition would be slightly less absurd than what Watkins in fact argues (that Trinity Lutheran as litigated poses only state-law questions).  One problem with such a view is that it would be contrary to literally hundreds of Supreme Court decisions over the past hundred years, including nearly every religious freedom decision of the past seventy-five years. 

Another problem with such such a view is that it is contrary to the best understanding of the original meaning of the Fourteenth Amendment.  While a few hardy souls continue to contest the “incorporation” of the provisions of the Bill of Rights against state governments by virtue of the Fourteenth Amendment, it seems clear that at the core of the Privileges or Immunities Clause of the amendment – “No state shall make or enforce any law which shall abridge the privileges of immunities of citizens of the United States” – was the well-expressed design to make all citizens’ federal constitutional privileges and immunities into binding restrictions on what state governments could do, too.    

It is not clear whether Watkins is making an anti-incorporation argument.  If so, he certainly does not do so at all clearly.  He writes, somewhat confusingly: “Similarly, the 14th Amendment should be inapplicable. The Equal Protection Clause was meant to ensure that states treated whites and blacks the same regarding civil and legal rights.”  That non sequitur does not amount to a claim that the freedoms of the Bill of Rights do not apply to the states.  If the claim is that the Equal Protection Clause cannot be read to forbid government discrimination against religion (because it also forbids government racial discrimination), I disagree: The First Amendment (as incorporated by the Fourteenth) may supply a straighter path to the conclusion that government may not discriminate on the basis of religion in its programs.  But the Equal Protection Clause is not in terms limited to racial discrimination and its principles seem fully applicable to unequal treatment on the basis of religion.      

Watkins quotes, somewhat out of context, an 1823 letter by former President Thomas Jefferson, to the effect that a dispute “between a citizen and his own State, and under the law of his State” is a “domestic case” over which federal courts lack jurisdiction. Watkins then concludes: “In a Jeffersonian federalist system, Missourians would be free to work this out themselves.” 

Here’s the thing:  Jefferson died forty years before the Fourteenth Amendment was proposed.  Like it or not, we don’t live in Jefferson’s vision of a federalist system.  Whether Missouri’s exclusion of Trinity Lutheran from a government program, because it is a church, violates Trinity Lutheran’s First Amendment rights is not (today) a mere “domestic” dispute “between a citizen and his own State” under the laws of the state only.  It is a dispute about the meaning of the U.S. Constitution – and about whether the laws of a state are consistent with that national Constitution.  Missourians cannot just “work this out themselves,” in disregard of the First Amendment to the U.S. Constitution, any more than Missourians could do so in Widmar v. Vincent or Tennesseans could do so in McDaniel v. Paty.

Watkins’s final argument may be his most incoherent.  “If Trinity Lutheran had been handled in state court, it would now be moot” because of Governor Greiten’s announced change of state policy, he writes. The Supreme Court should therefore “remove the case from its docket and let the matter stand resolved.” 

As noted above, the non-mootness of the Trinity Lutheran case is a fairly straightforward legal conclusion.  But no matter how one views the mootness issue, it makes no difference to its resolution whether the case came up to the Supreme Court through the lower federal courts or through the state courts.  If the case is moot – if nothing turns on it any longer – it is moot.  And if it is not moot, it would not somehow be “more moot” if the case had come from the Missouri Supreme Court. 

Finally, if the case were really moot, that would not mean that the Court should “remove the case” from its docket and “let the matter stand resolved.”  It would mean that the lower court decisions should be vacated entirely and the case dismissed. 

For the Court to do as Watkins urges would be to let a federal constitutional violation stand, either in the name of states’ freedom to do whatever they want (whether or not it violates their citizens’ federal constitutional rights), or in the name of mootness (which makes no sense whatsoever).

That’s not Jeffersonian federalism.  That’s a basic lack of understanding of the U.S. Constitution and of the federal judicial system.    

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