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.