Thursday, February 16, 2023

SCOTUS Justices Clarify The Boundaries Between Church And State


The First Amendment of the Constitution addresses religious matters in the following statement: 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [.]”
And for brevity and clarity in the logic of legal arguments, I will refer to the establishment clause and the free exercise clause.
That bold statement contains merely 17 words but in the 231 years since 1791, hundreds of federal law suits have found their way to the U.S. Supreme Court. And the justices have elaborated on what those 17 words mean and how the boundary between church and state is supposed to work. 
Certainly, politics and religion are an awful combination of intensely held uncertainties. SCOTUS is about law, reasoning, and logic and when applied to the boundaries between church and state—well, it’s an important, daunting task.
My goals for this blog are to:
Display the logical reasoning in the SCOTUS case of: TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES. Brevity title is: Trinity Lutheran Church v. Comer.
Display the highly refined style of the specific referral question the justices must answer.
Provide some historical perspective and context for the American experience of religion and government. Learn that Congress can make and modify laws which define the term “religion” and where and/or how it can be exhibited.

The First Amendment says Congress cannot establish (put into law to make happen) an official religion or religious activities. And the First Amendment also says Congress cannot prohibit (outlaw or prevent from happening) the exercise of (doing or performing) religious activities. If you ponder these two concepts you might begin to feel or see that they result in some contradictions.

Trinity Lutheran Church, located in Missouri, had a daycare center and preschool, and the preschool had a playground with a rough surface of pea-sized gravel. The roughness of that playground surface sometimes led to skinned knees. And, Trinity Lutheran Church learned that the State of Missouri had the Scrap Tire Program [recycling] which made a rubber surfacing compound. Missouri created a program by which nonprofit organizations could apply for a grant to get reimbursed for installing the rubber surfacing compound on their playgrounds; such a grant is called a government benefit
Trinity Lutheran Church applied for a grant and they were given a high score—fifth out of 44 grant applicants. But they were turned down because the Missouri Scrap Tire Program strictly prohibited giving grants to any applicant owned or controlled by a religious organization; this was in accord with the Missouri constitution. 
In Federal District Court, Trinity Lutheran Church sued the Missouri Department of Natural Resources alleging that they violated the free exercise clause of the First Amendment as well as the Fourteenth Amendment’s Equal Protection Clause; Trinity Lutheran asserted that a playground is not a church and, therefore, the Missouri government isn’t establishing religious practice by awarding a grant for playground resurfacing. But the Federal District Court agreed with Comer and disagreed with Trinity Lutheran.

Trinity Lutheran appealed to the Federal Circuit Court, which:
Made reference to a previous SCOTUS decision, Locke v. Davey, which said it’s not necessarily a violation of free exercise of religion to deny a government benefit to a church.
The Federal Circuit Court affirmed the Federal District Court’s decision. Trinity Lutheran lost.
Trinity Lutheran appealed to the Supreme Court, which agreed to hear the case.

Since over 50 years ago, all SCOTUS justices have been attorneys and most of them have come from the most prestigious law schools in America. When they perform their work on a case they will have:
Read background material, listened to oral arguments by the plaintive and respondent attorneys, and read a draft opinion by their own law clerks (who are themselves highly qualified, young attorneys). 
The nine justices meet and share their thoughts on how they would vote on the case before them and answer the referral-question of the case. By the end of this meeting, most of the justices can mostly figure out how everyone is likely to vote. The Chief Justice will assign a justice to write a majority opinion. 
Concerning our case of Trinity Lutheran V. Comer, each justice would join the majority opinion, or a dissenting opinion, or write a separate opinion of their own and join either the majority opinion or the dissent. 
Each judge will have answered yea or nay to the referral question presented, which is: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran Church’s grant application ranked fifth out of 44 grant applications, but they were “categorically disqualified” because they were a church and the Missouri Constitution stated that, “no money shall ever be taken from the public treasury, directly or indirectly in aid of any church, section or denomination of religion.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023 from https://www.oyez/cases/2016/15-577)

Legal Precedents Are Used To Make Valid, Logical Conclusions By Analogy
A legal precedent is a previous court decision in a different but similar type of case. When the two cases are similar in their essentials, the court can use the old case to logically infer that the new case should be decided similarly to the old case. SCOTUS justices are fully capable of using this process correctly; but there may be some small differences between the cases which result in dissents rather than concurrences.
In Locke v. Davey (2004) SCOTUS did not overturn a Washington College’s denial of a scholarship for graduate study of “pastoral ministries.” Washington State prohibited public funding for “religious worship, exercise or instruction.” Davey lost his case not because of what he believed religiously, but because of what he wanted to become, a minister. Public money could help fund, for example, his becoming a teacher in a wide variety of subjects; but, public money could not fund him for becoming a minister. 
The SCOTUS majority found the Federal District Court wrong in finding that Locke v. Davey showed that the free exercise clause didn’t require giving a grant to Trinity Lutheran. The free exercise clause requires that the “strictest scrutiny” be applied whenever “special disabilities” are applied as a result of “religious identity” (Church of Lukumi Babalu Aye, Inc v. Hialeah 1973). The ultimate result of these two precedents is that a public benefit cannot be withheld from an organization just because it’s a church. The District Court had made an argument by analogy from Locke v. Davey to Trinity Lutheran Church v. Comer but the District Court failed to account for the implications of strict scrutiny.
Everson v. Board of Education of Ewing (1947) involved an Establishment Clause challenge to a New Jersey law which allowed local school districts to reimburse parents for public transportation of their children to either public or private schools. This was a public benefit to all parents of any religion or no religion at all. If there is public transportation for either atheists or Christians, for example, then to deny the public benefit of transportation to schools for Moslems would be penalizing a religious group.

Precedents May Also Contain Fundamental Logical Structure 
Of "If This, Then That" Procedures
If-then statements are not hard to understand: whenever a specific condition exists then something else happens. For example, IF because of a religious identity issue some rights or benefits result, THEN the procedure of “strictest scrutiny” must be applied. Here’s the definition of strict scrutiny from the First Amendment Encyclopedia website: 
Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. Under a strict scrutiny analysis, a law that restricts freedom of speech must achieve a compelling government interest and be narrowly tailored to that interest or be the least speech-restrictive means available to the government. Strict scrutiny also is used when a law targets a specific religious faith.

The SCOTUS Conclusion in Trinity Lutheran Church v. Comer
The referral question was: Whether the [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.
SCOTUS answered the referral question by concluding that: The [Missouri] Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.
This was a 7-2 decision in favor of Trinity Lutheran Church. It was not a close decision. The majority opinion was written by Chief Justice Roberts and he was joined by Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch. Dissenting were Sotomayor with Ginsburg concurring in the dissent. I chose not to discuss the dissent because many of its claims are not convincing or are overstated. It does make a valid point that the majority’s opinion “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
I did not discuss the several concurrences because they focus on relatively minor points.

It is not at all easy to read and fully understand the background and logic of SCOTUS decisions. When I first read through the majority opinion I highlighted much of it as wrong! I had to work hard to understand how actual historical facts and the precedents spanning many decades make the Trinity Lutheran Church v. Comer decision a correct one. It turned out I was naïve on several important aspects of church and state constitutional law. 
Trinity Lutheran Church v. Comer displays clear logic and use of precedents. It includes discussions of the important procedure of applying strict scrutiny. 
The majority opinion is clearly and believably correct especially when focusing on what justice Breyer wrote in his concurrence: “[T]he First Amendment was clearly not meant to prevent religious organizations from accessing government-provided benefits such as police and fire services. The benefit here was for the health and safety of children and therefore was in the same class of government-provided services that religious organizations should be able to access.” (Trinity Lutheran Church of Columbia, Inc. v. Comer. (n.d.). Oyez. Retrieved February 9, 2023, from

Thursday, January 19, 2023

SCOTUS Opinions on Juvenile Executions and Sentencing



The goals of this blog episode are to:
1. Show how vital state and federal laws get modified and reconstructed over time. These laws do evolve as prompted by changes in society and government. 
2. Show how the Supreme Court works with the Constitution and Bill of Rights, work with the States, and makes reasonable changes in state and federal laws—even in matters of life and death. If you read the full cases, you will see how the justices agree or disagree and how they reason out their conclusions.
4. Show how SCOTUS upholds a state-federal division of labor in the application of criminal law.
5. Stimulate your interest in SCOTUS and motivate you to read actual Supreme Court opinions or summaries available on and numerous other organizations. 
6. I chose the topic of executions and sentencing for illustrating the operations of SCOTUS because these cases are simple enough to fit into a single blog.
Note: I will use “juvenile” to refer to children of age 17 and below. The youngest person convicted of murder, sentenced and executed in America was 14 years old.

The Eighth Amendment of the Constitution (1791) prohibits the infliction of “cruel and unusual punishments.” Since Colonial times, 364 juveniles have been executed for crimes.
Before 2002 the constitutionality of the death penalty was a “reasonably well-settled issue”; but in the next several years, the states and federal government made laws setting the minimum age for execution at 16 or 17; and finally in 2005 SCOTUS in Roper v. Simmons upheld the Missouri Supreme Court’s death penalty ban for juvenile offenders ( This SCOTUS opinion effectively banned, for all the states, executions of those under 18 years of age. 
Both the Eighth and Fourteenth Amendments are relevant for determining permissible changes to sentencing. From the Constitution’s Bill of Rights, the Eighth and Fourteenth Amendments are: 
Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(1) Roper v. Simmons (2005)
The Constitution does not explicitly say what makes punishment “cruel” or “unusual.” Those two adjectives are general and nonspecific. Roper v. Simmons put execution for juveniles into the cruel and unusual category of punishments. 
Roper v. Simmons eliminated the death penalty for juveniles by a 5-4 vote. Those in the five member majority didn’t agree on some points; and those in the dissents didn’t agree with each other on some points. Saying only yes or no to the legality of execution with one majority opinion and one dissent would have left out important nuanced ideas from justices Stevens, Ginsburg and O’Connor; they likely had important independent ideas they felt needed to stand out on their own—separate from the majority and minority opinions.
Justice Kennedy wrote the majority opinion of the Court, joined by justices Stevens, Souter, Ginsburg, and Breyer.
Justice Stevens filed a concurring opinion in which Ginsburg joined.
Justice O’Connor filed a dissenting opinion.
Justice Scalia filed a dissenting opinion in which justices Rehnquist and Thomas joined.
But Roper v. Simmons in 2005 was certainly not the end of these matters. As a result of Roper, for capital murder cases, many states responded by mandating sentences of life without the possibility of parole. Execution is the ultimate finality for a convicted criminal; but now for convicted juveniles, never, ever getting out of prison was also an ultimate finality.

(2) Miller v. Alabama (2012)
Inevitably, there were parents of juveniles condemned to life in prison, along with sympathetic citizens, criminal lawyers, and specialty litigation organizations who wanted to respond; and they filed lawsuits in state and federal courts. These lawsuits aimed to lessen the severity of the life without parole sentencing. Eventually one of these cases worked its way up through the appeals courts to SCOTUS. For SCOTUS to agree to take this case, four of the nine justices had to agree to hear it; four justices did agree and the full court heard the case of Miller v. Alabama in 2012.
Often when SCOTUS is deciding what to do in its current case, it considers other previous, related cases. And as SCOTUS justices argued in Miller v. Alabama, they considered their findings in Roper v. Simmons, Graham v. Florida, and Woodson v. North Carolina. These cases found merit in well-supported conclusions that:
  • Children are different from adults in lacking mature judgment;
  • have an underdeveloped sense of responsibility;
  • are more vulnerable to outside negative influences;
  • and because their age at sentencing is 3-5 years below the developmental milestone of brain maturity,
  • it is not reasonable to conclude they are incapable of eventually maturing and earning another chance for freedom.
The Miller v. Alabama finding said that juveniles cannot be sentenced to life without parole UNLESS [emphasis mine] the judge has “discretion” [emphasis mine] to take into account the characteristics of the juvenile—specifically whether his character has “irreparable corruption” or “irretrievable depravity.” In the majority were: Kagan, Kennedy, Ginsburg, Breyer, and Sotomayor. Chief justice Roberts wrote a dissenting opinion in which Scalia, Thomas, and Alito joined (Greenhouse, 2021).
Note: “Discretion” means a judge can choose a sentence from among permitted options.

(3) Montgomery v. Louisiana (2016)
In this case, SCOTUS ruled that its previous ruling in Miller v. Alabama should be applied retroactively. This would potentially affect 2300 cases nationwide. 
An inmate, Henry Montgomery, sentenced to life without possibility of parole and who had become a model prisoner, filed a motion for his sentence to be corrected so he could have a chance for parole. He lost in the Louisiana appeals court. He then filed a petition for his case to be heard by SCOTUS. 
SCOTUS found in favor of Mr. Montgomery by a vote of 6-3 . Justice Kennedy wrote the opinion for the court, joined by Chief Justice Roberts, and justices Ginsburg, Breyer, Sotomayor and Kagan. Justice Scalia wrote a dissent that was joined by justices Thomas and Alito.
Justice Kennedy wrote for the majority, that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and if it did not, their hope for some years of life outside prison walls must be restored."
Miller v. Alabama stated that a judge should have discretion to consider the characteristics of the juvenile before sentencing him to life without parole; but, that finding did not explicitly state that the judge had to make an official finding. What was meant by discretion was left ambiguous (probably not from neglect but to facilitate nine judges reaching a decision). 
Many judges ,when reacting to an inmate’s suit requesting resentencing, probably tried to satisfy Miller v. Alabama by a very quick look at very limited data--taking only a few minutes to scan a report. Obviously, fairly reconsidering sentencing should take the time to acquire and examine useful data.
As it turns out, Mr. Montgomery persisted in his attempt to be paroled. Parole was twice denied but in 2021 the Louisiana Board of Pardons and Parole granted parole by a unanimous vote. It is pleasant to note that while Mr. Montgomery was still in prison he was visited by two family members of the murder victim; and they forgave Mr. Montgomery.

(4) Jones v. Mississippi (2021)
Mississippi was one of a few states which had not changed their juvenile sentencing laws to conform with the previously discussed SCOTUS opinions. In 2005 Mr. Jones was convicted of murder and sentenced to life in prison without possibility of parole; this was a mandatory sentence under state law. The Mississippi judge had no discretion to choose any other sentence and according to Jones’ lawyer, there was no determination of incorrigibility [incorrigible = incapable of being corrected, amended, or reformed].
Mr. Jones appealed his sentencing in the Mississippi courts. As a result of SCOTUS Montgomery v. Louisiana, Mississippi entitled Jones to a rehearing of his case. Nevertheless, Jones was again sentenced to life without parole. Jones’ lawyer then asserted that Mississippi failed to consider the issue of permanent incorrigibility or rehabilitation potential (which would be a violation of Montgomery v. Louisiana).
Jones’ attorney appealed to SCOTUS and his case was accepted to be heard.
The question presented by the lawyers to SCOTUS was: 
“Whether the Eighth Amendment required the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole” (Greenhouse, 2021).
SCOTUS in a 6-3 vote affirmed the Mississippi Court of Appeals sentence of life without parole. 
Justice Brett Kavanaugh wrote the majority opinion, which was joined by Chief Justice Roberts, and justices Alito, Gorsuch, and Barrett. Justice Thomas wrote a concurring opinion. The dissenting justices were: Sotomayor, Breyer, and Kagan.
What justice Kavanaugh wrote does, in my opinion, display a deep respect for the seriousness of the issues and a knowledgeable and straight-forward application of State of Mississippi Law and U.S. Constitutional law.
From Wikipedia ( here is what justice Kavanaugh said:
“Determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender. [A] discretionary sentencing system [underline not in original] is both constitutionally necessary and constitutionally sufficient.”

Here is a brief review of SCOTUS rulings:
1. Roper v. Simmons (2005) says executions of convicted juveniles are no longer allowed.
2. Miller v. Alabama ( 2012) says judges must [both] have ”discretion” to choose among sentences for the convicted juvenile and take into consideration both the crime and the characteristics of the juvenile. Otherwise, life without parole sentences are not allowed. 
3. Montgomery v. Louisiana (2016) says Miller v. Alabama is retroactive to the 2100 murderers currently serving mandatory life sentences (Greenhouse, 2021).
4. Jones v. Mississippi (2021) answered the question whether a court had to make a finding [“finding” is taken to mean a conclusion] that a youth is “permanently incorrigible” before imposing a sentence of life without parole. SCOTUS affirmed the Mississippi appeals court sentence of life without parole and also said that Miller and Montgomery do not require the sentencer to make a separate factual finding of permanent incorrigibility before sentencing the defendant to life without parole. Kavanaugh’s majority opinion is saying that Mississippi’s discretionary sentencing system does include or allow sufficient attention to be paid to the individual characteristics of the convicted juvenile. Note: The word “finding” as used by SCOTUS justices seems to have some technical connotations; but I have not been able to track them down in a definition. 
Finally, I know from my forensic work that the goal of scientifically pronouncing a juvenile murderer “permanently incorrigible” is unreachable; determining incorrigibility is a useful phrase but, like a verdict of guilty or not guilty, the answer needs to come from a person occupying the official capacity of judge.

In this blog, we purposely didn’t talk about the crime specifics and or paint a picture of the defendant’s personality. The critical topics are simply a defined offense (murder) and (more complexly) the relevant state and federal laws. The SCOTUS opinion sets a boundary which distinguishes the role of federal law in contrast to what state law is responsible for. 
Whenever human beings discuss and argue what is to be done about an issue [whether petty or critically important], their viewpoints will focus on particular concepts; and their particular words are chosen to win a difference of opinion by obscuring some meanings and suggesting or actively promoting other meanings. This human interaction process shows up in ALL of the SCOTUS opinions I’ve read over the last year. 
Supreme Court justices are human beings who “argue” cases. They have an argument, but it's a professional argument. I find in reading simple SCOTUS cases that majority opinions seem more coherent and self-confident but that dissent opinions more tend to accuse the majority of ignoring important points and tend to be punctuated with cynical or sarcastic remarks. 

Fortunately, however, from all the reading I’ve done on America’s Supreme Court, I’ve been pleased to learn that even justices who often strongly dissent still honestly enjoy one another when not arguing! 
For references, see the relevant page on the website.
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