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…”