Few groups have experienced more tumult during the first 100 days of the Trump administration—and, in fact, much of the past year—than religious minorities. Much of this ominous sense stems from the ramp up, and then enactment, of the administration’s travel ban, which, in both its first and second iterations, targeted immigrants from Muslim-majority countries for extreme vetting when attempting to enter the United States.
But, the travel ban is seen by many as the tip of an even more nefarious iceberg. In the past year, there have been numerous reports of attacks on Mosques and Jewish cemeteries, as well as waves of bomb threats against Jewish community centers. All told, this has led many to wonder whether we are entering a new, and darker, period for religious minorities here in the United States.
Through a legal lens, however, the picture for religious minorities in the United States is far murkier. Surely the administration’s travel bans—with their potentially disastrous consequences for the Muslim community—combined with high-profile violence against Jewish and Muslim institutions raises significant and deep concerns. But courts, notwithstanding the legal complexities of standing and discriminatory intent, have demonstrated a healthy appetite for striking down multiple rounds of the administration’s travel bans as constitutionally prohibited forms of religious discrimination.1 Also, it is worth noting that these concerning developments do come during a time period where “Americans generally express more positive feelings toward various religious groups today than they did just a few years ago.” This combined legal resilience, alongside rising popular support for religious minorities, provides good reasons to think that there currently exists a strong bulwark against government discrimination targeting religious minorities.
Furthermore, viewing recent developments from the perspective of religious minorities, the Trump administration’s appointment of Neil Gorsuch provides a key vote on cases where the interests of religious minorities are likely to be at stake.
First, when it comes to cases implicating the Religious Freedom Restoration Act (“RFRA”), Gorsuch is likely to apply the law in ways that provide important protections to religious minorities. By way of background, RFRA responded to the problems the Supreme Court’s 1990 decision, Employment Division v. Smith, created for religious minorities.2 In Smith, the Court interpreted the Free Exercise Clause to only prohibit laws that targeted religious minorities—that is, that were not facially neutral and generally applicable.3 In cases where laws substantially burden religious exercise, the Court instructed those affected not to expect protection from the Constitution, but to instead seek religious exemptions from the relevant legislative body.4
Congress, viewing this legislative remedy as inadequate, enacted RFRA, which prohibits federal laws from substantially burdening a person’s religious exercise—even if the law is facially neutral and generally applicable—unless doing so is the least-restrictive means for advancing a compelling government interest.5 Importantly, because the federal RFRA only applies to federal law,6 many states have enacted their own parallel versions of the law to protect religious citizens against state laws that impose substantial burdens on religious exercise.
But, RFRA has become politically toxic in recent years, viewed by many as a tool to authorize religious businesses and institutions to discriminate against women and members of the LGBT community. As a result, states have, of late, faced significant backlash when they have attempted to enact their own state versions of RFRA.7
From the perspective of religious minorities, this has been a deeply unfortunate development. One of the central reasons why Congress viewed RFRA as necessary was because Smith significantly underestimated the challenges religious minorities face when seeking exemptions from a legislature.8 When religious minorities ask for exceptions, their practices are all too often viewed as insufficiently important to justify legislative protections—and religious minorities frequently lack the political power to convince a legislature to think otherwise.9
On this front, the appointment of Gorsuch presents good news for religious minorities. Gorsuch has demonstrated a willingness to take the religious-liberty claims asserted by members of minority faiths seriously and apply RFRA, and its parallel statute RLUIPA,10 faithfully. For example, in a 2014 case Yellowbear v. Lampert, Gorsuch penned an opinion upholding the religious-liberty right of a Native American inmate religious liberty rights who had been denied the use of the prison’s sweat lodge — a house of prayer and meditation the prison had supplied for those who shared his Native American religious tradition.11 In so doing, Judge Gorsuch recognized that “federal judges are hardly fit arbiters of the world’s religions” and, therefore, limited the court’s review of the plaintiff’s claim to whether he was sincere in his beliefs — as opposed to evaluating the theological importance of the plaintiff’s requests.12 Importantly, Gorsuch exercised judicial humility regarding a minority religious practice, unwilling to allocate government benefits and burdens by assessing the truth or value of the religious practice in question: “That job would risk in the attempt not only many mistakes — given our lack of any comparative expertise when it comes to religious teachings, perhaps especially the teachings of less familiar religions — but also favoritism for religions found to possess a greater number of ‘central’ and ‘compelled’ tenets.”13
Gorsuch’s appointment also holds out another important hope for religious minorities. Only ten days ago, the Supreme Court heard oral arguments in Trinity Lutheran Church v. Comer. At issue was a Missouri constitutional provision that states that “no money shall ever be taken” from the state and granted “directly or indirectly” to any religious institution.14 The case itself arose because Trinity Lutheran Church, a church-operated preschool, applied for a state grant to receive funds to purchase recycled tires so that it could make its playground safer for the students. While it qualified for the grant, it was denied the money because of the Missouri constitutional provision.15
Both parties and the Eighth Circuit16 apparently agree that it is permissible under the Establishment Clause for Missouri to award Trinity Lutheran Church the grant. Where the parties differ is whether Missouri is allowed to demand further separation of church and state than the U.S. Constitution requires.
Importantly, this case is not only about Missouri. Many states have such laws.17 And particularly from the vantage point of religious minorities, there are two-fold reasons to criticize such laws: they are discriminatory both in impact and likely in origin as well. In terms of impact, such laws can require states to exclude religious institutions from important and neutral funding. For example, if Missouri chose to grant money to high-risk security targets, it could give to all qualifying institutions except the religious ones. If, in the wake of a natural disaster, Missouri provided financial support to affected institutions, it would have to exclude only the religious institutions from its funding. As more and more states, considering recent threats against Jewish and Muslim targets, consider providing religious institutions security funding, the existence of these laws raises serious concerns for religious minorities and highlights why the expansive and unyielding nature of these laws should register as religious discrimination prohibited by the Free Exercise Clause.
Equally troublesome is the origin of these laws, which have roots in the nineteenth century. Former U.S. House Speaker James Blaine promoted a federal constitutional amendment in the 1870’s that would have banned government funds from being spent on religious education. When that initiative failed, states took it up, inserting similar laws into their constitutions. Missouri was only one of them. As Justice Clarence Thomas noted in Mitchell v. Helms,18 Blaine’s advocacy was motivated by anti-Catholic sentiment. And it is not much of a leap to conclude that the states that took up the cause after Blaine’s failed attempts were channeling the same discriminatory agenda.
Already at oral argument in Trinity Lutheran, Gorsuch has indicated that he is committed to rejecting all forms of religious discrimination. When Justice Kagan characterized the case as one in which “people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit,” Gorsuch followed up by indicating that he was not satisfied with the answers provided to the Court, emphasizing that, “[w]ell, discrimination on the basis of status of religion . . . . [w]e know that’s happened in this case, right?” Gorsuch may provide the swing vote in Trinity Lutheran; or, he may simply shore up the Court’s commitment to rejecting all forms of religious discrimination, especially when it comes to funding for the safety and security of minority religious institutions. In an age where the dangers experienced by religious minorities are so pronounced, the possibility that the Court will strike down laws that are discriminatory, both in origin and impact, is of vital significance to religious minorities.
Indeed, a decision in favor of Trinity Lutheran Church could fundamentally change the way many states think about their ability to support vulnerable religious minorities and could far outlast this current moment of great angst for religious minorities. If changes on the Court—and in public opinion—are afoot that alter the place of religious minorities in the American landscape for the better, then there may be reason to see this period as providing religious minorities with long-term hope, notwithstanding the short-term perils.
* Associate professor of law, Pepperdine University School of Law; associate director of Pepperdine University’s Diane and Guilford Glazer Institute for Jewish Studies. His articles have appeared in numerous law reviews, including the Yale Law Journal, New York University Law Review, and Duke Law Journal, and have twice been selected for the Harvard-Stanford-Yale Junior Faculty Forum.
1 Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017); Hawai’i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017), order extended, 2017 WL 1167383 (D. Haw. Mar. 29, 2017); Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), stay denied, 847 F.3d 1151 (9th Cir. Feb. 9, 2017) (per curiam).
2 494 U.S. 872 (1990).
3 Id. at 877–79.
4 Id. at 890.
5 42 U.S.C. § 2000bb–1 (2012).
6 City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997).
7 See, e.g., Tamara Audi, Arizona Vetoes Religious Bill Criticized as Anti-Gay, Wall St. J. (Feb. 27, 2014), http://www.wsj.com/articles/SB10001424052702304255604579407784144050074; Laura Meckler & Ana Campoy, Arkansas Governor Calls for Changes to ‘Religious Freedom’ Bill, Wall St. J. (Apr. 1, 2015), http://www.wsj.com/articles/arkansas-governor-calls-for-changes-to-religious-freedom-bill-1427904740; Mark Peters & Jack Nicas, Indiana Religious Freedom Law Sparks Fury, Wall St. J. (Mar. 27, 2015), http://www.wsj.com/articles/indiana-religious-freedom-law-sparks-fury-1427491304.
8 See Michael A. Helfand, The Future of Religious Liberty in the Wake of Hobby Lobby, in The Contested Place of Religion in Family Life (Robin Fretwell Wilson ed.) (forthcoming 2018).
9 See Michael A. Helfand, Identifying Substantial Burdens, 2016 Ill. L. Rev. 1771, 1788 (2016).
10 Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc–cc-5 (2012).
11 741 F.3d 48 (10th Cir. 2014).
12 Id. at 54.
14 Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779, 782 (8th Cir. 2015).
15 Id. at 781–82.
16 Id. at 784 (“For example, it now seems rather clear that Missouri could include the Learning Center’s playground in a non-discriminatory Scrap Tire grant program without violating the Establishment Clause.”).
17 See generally Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551 (2003).
18 530 U.S. 793, 828 (2000) (opinion of Thomas, J.).