Jun 30, 2017

On Monday, the U.S. Supreme Court decided the biggest church–state case of the term: Trinity Lutheran Church of Columbia v. Comer. Americans United gave a quick run-down of the opinion when it was released, but now it’s time to look ahead at what the decision means for the future.

The case involved a Missouri grant program that awards tax dollars to nonprofits and schools to pay for their playgrounds to be resurfaced with scrap-tire material. Trinity Lutheran Church, which uses its playground for its children’s ministry and religious preschool, applied for the grant.

Only a limited number of applicants can receive this tax money each year. The state officials who administer the grant program denied Trinity Lutheran’s application, citing a clause in the Missouri Constitution that forbids giving public funds to churches. More than three-quarters of the states have clauses of that sort, some of which date back to the founding era. Missouri has had constitutional restrictions on funding houses of worship since 1820.

The Supreme Court's decision in the Trinity Lutheran case isn't as broad as some voucher advocates think.

Despite that long history, Trinity Lutheran filed suit, arguing that the state, by not giving it the money, was discriminating against the church on the basis of religion in violation of the provision in the First Amendment that protects the “free exercise” of religion.  

On Monday, the Supreme Court, ruling 7-2, agreed.

In an opinion authored by Chief Justice John G. Roberts, the majority held that the scrap-tire program was a generally available public benefit and therefore that churches cannot be categorically prohibited from participating in it. Rather, nonprofits, both religious and nonreligious, should be equally eligible to get the money.

The decision was certainly a disappointment. Religious freedom is best protected by keeping government out of churches’ affairs – and that includes their property improvements. Never before has the Supreme Court held that the states must cut checks to churches. Now, the Missouri grant program’s administrators, who are state officials, will be in the position of deciding which houses of worship will be winners and which will be losers, a recipe for the very religious favoritism that church–state separation is meant to avoid.

But the decision was also a narrow one. Roberts included a footnote in his decision (which was joined by Justices Anthony M. Kennedy, Samuel A. Alito, and Elena Kagan, but notably not by Justices Clarence Thomas and Neil Gorsuch) that limits the decision to the facts, saying: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” And Justice Stephen Breyer, who joined in the majority’s judgment but wrote his own separate opinion, made it clear that he ruled as he did because the grants were for a generally available health-and-safety program.

What’s more, Justice Sonia Sotomayor wrote a stirring dissent, joined by Justice Ruth Bader Ginsburg, in which she outlined our country’s long history of church–state separation. Sotomayor reiterated that by refusing to provide tax money to churches, we protect freedom of conscience for all. She also warned that the Court’s decision “leads us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

As is typical, the Supreme Court has returned several cases to the lower courts to be reconsidered in light of the Trinity Lutheran decision. These cases – dealing with the constitutionality of using publicly funded vouchers at religious schools – will offer us some of the first glimpses into how lower courts will respond to the decision.

Meanwhile, Americans United will continue to fight to ensure that Trinity Lutheran is interpreted as the court intended it to be: narrowly. The constitutional rule that public funding should not be put to religious uses is still very much alive, and Americans United intends to keep it that way.