Apparently fearing a 4-4 split, the court delayed hearing the case for more than a year. Last week, Trinity Lutheran got its chance to explain to a full set of nine justices that the state’s constitution forces the church “to choose between exercising their religious faith and receiving a public benefit.”
The church was represented by David A. Cortman, senior counsel of the religious-right powerhouse Alliance Defending Freedom. I don’t question that ADF is deeply concerned about playground injury, but its agenda is broader. Much of its advocacy is concerned with creating religious-based exemptions to regimes of protection for LGBTQ people, with broadening the ability of Christian majorities to bring religion into public life and policy, and with empowering Christian parents in their dealings with public education.
Some 40 U.S. states maintain constitutional provisions like the one at issue in Trinity Lutheran. A victory for the church here might set up wins elsewhere on consequential issues like school voucher payments for religious schools—and exemptions for those schools from possible anti-discrimination laws involving sexual orientation and gender identity.
So a lot more is at stake than playground injury.
No one suggests that giving the church its grant would, by itself, violate the Establishment Clause. The issue instead is whether states can go beyond the clause and create a kind of “buffer zone” for their own funding programs without violating the church’s right to “the free exercise” of its religion.
The court in 2004 had held that the state of Washington, based on a state constitutional rule similar to Missouri’s, could refuse to fund a scholarship for a student who wanted to study theology. In that case, the state argued—and the Court agreed—that the Constitution did not require it to provide funds that would go directly to training a future pastor. In his opinion, Chief Justice William Rehnquist (no hater of public religion) wrote that “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Whether that precedent applies in the case of a playground—which is not, itself, a place of worship at all—is a puzzling question. The earlier plaintiff wanted to use money directly for religious purposes; a playground, however, has little theological content.
But while the precedent this case may set is potentially significant, there’s some question about the specific stakes in Trinity Lutheran. It may be that, as Tallullah Bankhead once remarked of a Broadway play, “there is less in this than meets the eye.”
Consider: after the state denied the church’s grant application, Trinity Lutheran went to federal court in 2013. The church lost at the district level and at the court of appeals—and as the case dragged on, a political backlash developed against the state’s position. Last November, Missouri voters elected a new attorney general, Josh Hawley, whose campaign speeches criticized the denial of the church’s grant. Once elected, Hawley recused himself because he had actually done legal work in support of the church. The state’s deputy AG then asked outside counsel to defend the state’s position.