The Supreme Court Strikes Down a Major Church-State Barrier

The Supreme Court ruled on Monday that the state of Missouri cannot deny public funds to a church simply because it is a religious organization.

Seven justices affirmed the judgment in Trinity Lutheran v. Comer, albeit with some disagreement about the reasoning behind it. The major church-state case could potentially expand the legal understanding of the free-exercise clause of the First Amendment of the U.S. Constitution. It is also the first time the Supreme Court has ruled that governments must provide money directly to a house of worship, which could have implications for future policy fights—including funding for private, religious charter schools.  

Trinity Lutheran is a big case that hinges on mundane facts. In 2012, when Trinity Lutheran Church in Missouri applied for a state grant to resurface its playground, it was ranked as a strong potential candidate for the program. Ultimately, though, Missouri denied the funding under a state constitutional provision that prohibits public money from going to religious organizations and houses of worship. “There is no question that Trinity Lutheran was denied a grant simply because of what it is,” wrote Chief Justice John Roberts in his decision for the majority. “A church.”

The case focused on whether this decision conflicts with the First Amendment of the United States Constitution, and specifically whether Missouri was violating the free-exercise clause by preventing Trinity Lutheran from participating in a secular, neutral aid program. On Monday, the court overwhelmingly agreed that the answer was “yes.”

“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit,” wrote Roberts. “The rule is simple: No churches need apply.” While this case concerns Missouri, many states have their own versions of the constitutional provision Missouri used to deny money to Trinity Lutheran—they’re often referred to as “Blaine amendments,” based on their historical grounding in suspicion toward Catholics. This decision could open the way to widespread challenges to the application of these provisions.

Even though the facts of the case may seem inconsequential—the difference between a few knees scraped on a rough pea-gavel playground—the stakes of the decision were high, Roberts wrote. He compared Missouri’s actions to 200-year-old efforts in places like Maryland to prohibit certain individuals from running public office simply because of their faith. “The result of the State’s policy is nothing so dramatic as the denial of political office,” he wrote. “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

This was the key  argument of the majority opinion: Trinity Lutheran faced discrimination because of its identity as a church. Joined by Justices Anthony Kennedy, Samuel Alito, and Elena Kagan, Roberts included a caveat intended to limit the scope of the decision—it’s about who is getting the money, not how the money is used. “This case involves express discrimination based on religious identity with respect to playground resurfacing,” he noted in a footnote. “We do not address religious uses of funding or other forms of discrimination.”

Justices Neil Gorsuch and Clarence Thomas were skeptical of this distinction. “The Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use,” Gorsuch wrote in a brief dissent to the footnote. “Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?” Outside of their “modest qualifications” to the majority decision, though, Thomas and Gorsuch both affirmed the majority.

While Justice Stephen Breyer concurred with the judgment of the court, he was eager to limit its finding. The court had previously ruled that governments can’t deny general services like police and fire protection to houses of worship, he wrote. “Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference.” He agreed that the court should find in favor of Trinity Lutheran, but “I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day,” he said.

Breyer seemed to be anticipating the floodgate of legal challenges that Trinity Lutheran may invite. This is the first time the court has said the government is required to provide public funding directly to a religious organization. That decision could have implications for a host of other policy fights—especially the debate over public funding for private religious schools. In her dissent to the majority’s decision, joined by Justice Ruth Bader Ginsburg, Sonia Sotomayor wrote that this was her great fear about this decision.  

“This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state,” she wrote.

The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

While her colleagues may see this about nothing more than tire scraps on a church playground, Sotomayor argued that the decision undermines years of court precedent and legal history in the United States. She walked through case after case of the early American states limiting the flow of public money to houses of worship.

“Those who fought to end the public funding of religion based their opposition on a powerful set of arguments,” she wrote. “The civil government, they maintained, could claim no authority over religious belief. For them, support for religion compelled by the State marked an overstep of authority that would only lead to more.”

Early legislators also argued that religious groups would start competing for public money, she wrote. “Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily.” Missouri wasn’t being “anti-religious” in denying money to Trinity Lutheran, Sotomayor argued. It was choosing to remain secular.

“If this separation [of church and state] means anything, it means that the government cannot … tax its citizens and turn that money over to houses of worship,” Sotomayor wrote. “The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

As Sotomayor predicts, Trinity Lutheran is likely the beginning of a new wave of legal challenges about government funds and the free-exercise clause. A little case about tire scraps and playgrounds just set the stage for a new way of thinking about the separation of church and state.