Trinity Lutheran v. Pauley was one of the most anticipated cases on the Supreme Court’s calendar this term. Although the Court agreed to hear this case in January 2016 and briefing for this case has long been complete, the Court just recently scheduled the case for oral argument in April 2017. The Court was likely waiting for a ninth justice to join the bench before considering the case to avoid a 4-4 tie.

Now that this case has been scheduled, we can jump into the fun part: the merits of Trinity Lutheran‘s arguments.

At center of this religious liberty case is a Missouri program that provides grant money to qualifying groups so that they can purchase recycled tires to build rubber surface materials. Trinity Lutheran applied for this grant so that it could acquire material to build a safer playground on its property. Students from its daycare and community members would use the newly resurfaced playground. In the application process, Trinity Lutheran ranked fifth out of forty-four applicants. The state was supposed to award fourteen grants. But Trinity Lutheran did not receive the grant. Missouri categorically barred Trinity Lutheran from receiving a grant because it is a religious institution.

Missouri claims that both its state constitution and the federal Establishment Clause prohibits it from awarding a grant to any religious group. But Trinity Lutheran claims that Missouri’s act of withholding the grant violates the Free Exercise Clause. This case thus implicates the classic “play in the joints” between the Establishment and Free Exercise Clauses.

Unlike in previous religious liberty cases, the Equal Protection Clause is also playing a central role. Surprisingly, the Court has never directly held what level of scrutiny applies to analyze state action treating religion and non-religion—or two religions—differently. The Court has only mentioned in dicta that making religious distinctions is a suspect classification.

To the casual observer, it seems obvious that strict scrutiny should apply in evaluating Trinity Lutheran’s equal protection claim. The Court has consistently held that state action treating people differently for exercising a fundamental right triggers strict scrutiny, and the Court has also held that practicing religion is a fundamental right. Although an issue of first impression, it appears obvious that strict scrutiny applies to Trinity Lutheran’s equal protection claim.

And for good reason. Religion is functionally an immutable trait, and the Court frequently treats immutability as grounds for applying strict scrutiny. Traditionally, immutable traits are biological characteristics that a person cannot change, like race or sex. But some commentators have argued that traits can be “effectively immutable,” because even though a person could formally change it, it is very difficult to do so. Religion fits this description. Even though people often convert religion, a person should never be forced to change their faith. Religion often creates a deep tie with one’s ancestors and traditions, and forcing people to violate their faith can cause great psychological harm. If there is any trait that is “effectively immutable,” it is religion. Therefore, the Court should treat religion as an immutable trait, and review any distinctions based on it with strict scrutiny.

If Trinity Lutheran’s equal protection claim triggers strict scrutiny, Missouri cannot meet its burden. When the Court applies strict scrutiny, the government has the burden of showing that it has a compelling reason to make a suspect classification and that its distinction is narrowly tailored. Missouri claims that it has a compelling interest in avoiding violating its state constitution. But the Court has previously held that avoiding a state constitutional violation is not a compelling reason to violate the federal constitution. Missouri may have a compelling interest in preventing state funds from being spent on religious activities, but even so, Missouri’s differing treatment cannot be narrowly tailored, because no identifiably religious activity is implicated here. Trinity Lutheran is using rubber for a secular activity—daycare, not worship. Moreover, the Court has held that states may provide religious groups funding to spend on non-sectarian items, such as basic school materials and busing.

The Court should say in no uncertain terms that religious discrimination does trigger strict scrutiny under the Equal Protection Clause. In this case, strict scrutiny is fatal to Missouri’s arguments. Regardless of how the Court comes out on the Free Exercise Clause or Establishment Clause claims, Trinity Lutheran’s equal protection claim should make this an easy case.  

Note: I co-authored an amicus brief in support of Trinity Lutheran as a fellow with the Pacific Legal Foundation. I neglected to disclose this when I initially made this post.