Trinity Lutheran Church v. Comer, the church-state case decided by the Supreme Court Monday, is a truly hard case. I can think of good arguments for either side, and even better arguments why—since there was no remaining dispute between the actual parties—the court should have stayed out altogether.
The court waded in, alas. And the majority opinion, by Chief Justice John Roberts, and the dissent, by Justice Sonia Sotomayor, got the issue wrong.
In Trinity Lutheran, a church challenged the state of Missouri’s refusal to fund safety improvements at its daycare playground. In April 2017, however, the newly elected governor of Missouri ordered the state to grant the funding and not to enforce its no-churches funding rule. The church won what it wanted because the state decided to give it—this being, for any judges unclear on the concept, what is wistfully called “the political process” courts are supposed to support, not supplant.
Even after the fight ended, however, the Supreme Court insisted on deciding the no-longer-existent dispute. The resulting opinions illustrate the old adage that “if you don’t know where you’re going, when you get there, you’ll be lost.”
The issue in Trinity Lutheran is whether the Constitution requires that the church, located in Columbia, Missouri, be eligible for a state grant program that pays for non-profit organizations to put down recycled-rubber-tire surfaces that prevent playground injuries. The church operates a daycare center. Its application for a state grant was strong; the state rejected it solely because the daycare is run by the church itself. That meant a grant would violate a provision of the Missouri state constitution that provides, “no money shall ever be taken from the public treasury… in aid of any church, sect, or denomination of religion…”
As someone who has spent nearly two decades studying church-state cases, I am frankly torn about this one. Denying playground surfacing to children based on the formalities of their daycare seems harsh; but constitutional micromanagement of state church-state relations has its own hazards.
To be clear: The rejection was not because the daycare was religious. Had it been operated by a separate religious non-profit with its own board (as it originally was) rather than directly being controlled by the church itself, it would almost certainly have been ruled eligible. (In 2007, the Missouri Supreme Court held that St. Louis University—founded by the Society of Jesus, with a Jesuit president, a Jesuit philosophy, and guaranteed Jesuit membership on its board—was not ineligible under the Missouri constitution: “Mere affiliation with a religion does not indicate that a higher education institution is ‘controlled by a religious creed’ for purposes of Missouri's establishment clause,” the court said.)
But because the funds would flow directly into a church treasury and be spent by church officials, the grant would violate a widely held principle (as many as 38 states have similar language in their constitutions) against direct funding of churches and similar “houses of worship.”
All the parties agreed (though some others disagreed) that actually funding the playground would not violate the Constitution’s prohibition on “an establishment of religion.” The question was whether not funding the playground violated the church’s right to “the free exercise” of religion.
The chief justice painted a dramatic picture of the stakes. In his majority opinion, he compared the church’s plight to that of a 19th-century Marylander barred from public office because he was a Jew: “If, on account of my religious faith, I am subjected to disqualifications from which others are free, [this is] a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”
Roberts did tersely admit that “Missouri’s Department of Natural Resources has not subjected anyone to chains or torture on account of religion.” But, he said, the grant rejection constitutes something similar—discrimination against the church because of its “religious identity.” Because it is such deadly discrimination, he wrote, a denial of general funding grants to a church requires “strict scrutiny”—the constitutional equivalent of a death sentence.
All very well, except the entire factual predicate is spurious. The grant denial is not because the church is “religious”—religious-based non-profits, as noted above, are eligible to apply for the grants. It is because Trinity Lutheran is a “church”—a particular kind of organizational status that brings with it an enormous number of advantages (Churches, for example, are permitted to discriminate in hiring and promotion on the basis of religion; churches do not pay taxes that other organizations do).
Since the time of the First Congress, the prohibition on “establishment” has been conceived of as preventing churches—or “houses of worship”—from receiving exactly that: direct payments of tax funds. For more than 200 years, states have tried to avoid establishment problems by drawing a strict line between state funds and church treasuries. It’s hard to find “chains and torture” in that history.
So much for the chief’s misconception. Here is how Justice Sotomayor framed the issue in her dissent:
The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.
I actually find the idea that the playground’s surface is as “integral” to a “religious mission” as a church’s pews to be almost entirely “escapable.” Religion finds its way onto the playground; indeed, even if less orthodox, playground prayer is often more sincere—Dear God, don’t let that big ape hit me in the face!—than intercessions murmured under the pastor’s watchful eye. But it is not the kind of religion that is “integral” to a church’s mission. That kind of exercise takes more than a jungle gym and a zipline. And because that seems like a real difference, I can’t agree with Sotomayor that allowing the funding (as, to repeat, Missouri was already doing) violates the Establishment Clause.
Perhaps because the principal opinions were weak, separate opinions proliferated Monday. The church won, 7-2: Roberts’s opinion was joined in full by Justices Anthony Kennedy, Samuel Alito, and Elena Kagan. Justices Clarence Thomas and Neil Gorsuch joined the others, “except as to footnote 3”—disassociating themselves from Roberts’s muddled note mildly suggesting that this case does not create a rule that no state funding programs may ever under any circumstance exclude churches: “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.”
Thomas and Gorsuch each wrote his own opinion to suggest that the opinion should be much broader. They, and a number of those on the religious right, were hoping for a precedent that will, for example, require states to fund religious charities and schools even if they maintain policies that discriminate against female or LGBT employees and students. Clearly concerned about that kind of precedent creep, Justice Stephen Breyer wrote a separate opinion to suggest that the opinion really had no application beyond funding for completely non-religious activities like playgrounds. Justice Elena Kagan joined Roberts’s opinion; Sotomayor’s pure separationist dissent was joined only by Justice Ruth Bader Ginsburg.
One of the key precedents at issue in Trinity Lutheran was a 2004 case called Locke v. Davey, a challenge to a similar “no funding” provision in the Washington state constitution. The state had a college scholarship program for high achievers; but the plaintiff was refused funds to pursue a degree in “devotional theology.” He claimed religious discrimination; the court, 7-2, said that the state could legitimately choose not to directly fund a minister’s education.
In an opinion by Chief Justice William Rehnquist, the court said the Establishment Clause would not forbid the state from giving the scholarship if its laws allowed, but that the Free Exercise Clause did not require it to do so if they did not: “These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension,” Rehnquist wrote. “Yet we have long said that ‘there is room for play in the joints’ between them.”
On Monday, the justices showed no appetite for play—in the joints or anywhere else.
We’ve all seen playground quarrels escalate out of control. Often, left to themselves, the tiny combatants would quickly have forgotten the whole thing.
That’s what’s happened in this case.
Conservative justices have been eager to eviscerate any legal principle that limits churches in any way. The long-term aim is a rule that churches are entitled to every benefit, including tax funding, that secular institutions get, but not subject to any limits, such as anti-discrimination laws, that secular institutions must observe. Sotomayor and Ginsburg, determined to defend separation, forced the case into an Establishment Clause mold that ill suits it.
On the actual playground, meanwhile, church and state had a little spat, then made up and went for ice cream. After they left, the adults went to Defcon One, with results that will bedevil the rest of us for years.