What church/state separation advocates feared has come to pass: The Supreme Court ruled today 7-2 that taxpayer money can be used to support church projects that are ostensibly secular. If the government makes a grant available to the public and a church qualifies for it, it can’t be ruled out simply because it’s religious.
Justices Elena Kagan and Stephen Breyer joined the conservative bloc in the Trinity Lutheran Church v. Comer decision.
This case was all about whether the state of Missouri could give a taxpayer-funded grant to Trinity Lutheran Church to renovate its playground. The state said no because it was forbidden from supporting religion with public money, while church leaders said they were being discriminated against for being religious. This was just a playground, pastors argued, not something directly promoting the Christian faith. (You can read more details about the case here.)
Even when the oral arguments occurred in April, it seemed apparent that the churches would win the case. The conservative justices’ questions suggested that they felt the grants discriminated against churches, and even Justice Kagan seemed sympathetic to that line of reasoning:
… this is a clear burden on a constitutional right… in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit.
Of course, the “neutral benefit” of a safer playground meant there would be a religious benefit of having more money left over in the church coffers along with a more structurally sound church that would be more inviting to the public.
The question that liberals were wondering was just how broad this ruling would be. If the church won, what would it mean with regards to government funding of religious institutions? Would taxpayers soon be funding the upkeep of churches across the country?
Right now, it seems limited to government grants available to the general public. Churches still cannot receive money for the direct promotion of religion. But this ruling will allow churches to claim that certain aspects of their work are secular in nature and therefore eligible for public money.
Roberts said in his opinion that excluding this church from receiving the grant to upgrade a playground was “odious” to our nation’s principles:
The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified.
The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. 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.
In one footnote, he added:
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.
Justices Clarence Thomas and Neil Gorsuch took issue with that in a concurring opinion. Gorsuch said he feared that this decision might cause people to think it only applies to playground resurfacing and not broader issues.
… I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.”
And the general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.
Justice Breyer added in a separate concurrence, perhaps to mollify liberals, that there was simply no good reason to exclude churches from something as simple as this grant. In other words, he was limiting the power of this opinion:
The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith. And it is that last-mentioned fact that calls the Free Exercise Clause into play. We need not go further. Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.
What’s interesting is that this means five of the justices who ruled in favor of Trinity Lutheran — Roberts, Kennedy, Alito, Kagan, and Breyer — believe this case is just about playgrounds (and similar grants). It’s Thomas and Gorsuch who want a broader decision. But by nature of the conservatives’ victory, you can bet “religious freedom” groups will use this decision in their efforts to turn this into a broader ruling.
Meanwhile, Justice Sonia Sotomayor‘s dissent, joined by Justice Ruth Bader Ginsburg, is longer than Roberts’ opinion. You can tell she’s not happy with her colleagues’ decision and she has plenty of reason for that.
To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state. 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.
Sotomayor echoed church/state lawyers who said giving money to renovate a church playground frees up money the church can use for proselytizing purposes. So this was always about funding religion with taxpayer money. When you renovate a playground on church property, you are helping that church.
The Establishment Clause does not allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission. The Court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents.
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.
Even when the government has given money to religious organizations, she noted, it included a rule that proselytizing on the taxpayers’ dime was not permitted. This decision flies in the face of that tradition. Sotomayor added (in a footnote) that the church never even agreed to the rules of the grant program saying that money would only be used for secular purposes.
Her concern is that things will only get worse from here because well-funded religious groups will use this decision to skirt the law and get the state to pay for more of their “secular” needs.
It permits direct subsidies for religious indoctrination, with all the attendant concerns that led to the Establishment Clause. And it favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded enough to do so successfully.
Such a break with precedent would mark a radical mistake. The Establishment Clause protects both religion and government from the dangers that result when the two become entwined, “not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state — at least where the heartland of religious belief, such as primary religious [worship], is at issue.”
Sotomayor also slammed her colleagues for their hypocrisy on this issue. They said something very different when deciding Town of Greece v. Galloway.
Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular. Just three years ago, this Court claimed to understand that, in this area of law, to “sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent”… It makes clear today that this principle applies only when preference suits.
She concludes with this incredible defense of church/state separation.
If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. 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. I dissent.
Not even “I respectfully dissent,” as is tradition.
Just “I dissent.”
It won’t surprise you to learn that Christian “religious liberty” groups are celebrating this decision (even as they ironically celebrate the Court agreeing to hear the case involving Donald Trump‘s travel ban against Muslims).
Alliance Defending Freedom called this a “huge religious freedom victory.”
… Equal treatment of a religious organization in a program that provides only secular benefits, like a partial reimbursement grant for playground surfacing, isn’t a government endorsement of religion. As the Supreme Court rightly found, unequal treatment that singles out a preschool for exclusion from such a program simply because a church runs the school is clearly unconstitutional.
Conservative group Becket agreed, saying this was a “win for religious liberty“:
“The Court’s decision is good for kids and good for religious liberty,” said Hannah Smith, senior counsel at Becket, a non-profit religious liberty law firm that filed a friend-of-the-court brief on the school’s behalf. “Trinity Lutheran was simply asking that the government play fair, treat churches equally, and help the preschool make its playground safer for children. Today’s decision does just that.”
Neither group, it should be noted, talks about the implications of this ruling for future church/state cases, presumably because they want to downplay that angle. Make no mistake, though. They don’t really care about a playground so much as they hope this opens the door to even more money being funnels from taxpayers to religious institutions.
Americans United for Separation of Church and State, on the other hand, was “dismayed” by the ruling.
The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, issued the following statement:
“This ruling undermines the bedrock principle that no American should be forced to support a religion against his or her will. The religious freedom protections enshrined in state constitutions are worth more than resurfacing a playground.
“Taxpayer-funded religion is bad for churches, communities and citizens. Americans United will continue to fight to buttress the church-state wall because that’s the only thing that can ensure true religious freedom for everyone.
“This ruling threatens to open the door to more taxpayer support for religion, which is at odds with our history, traditions and common sense.”
The ACLU issued a brief statement of disappointment, while arguing that the decision was narrower than the Religious Right would have you believe.
Daniel Mach, director of the ACLU’s Program on Freedom of Religion and Belief, had the following reaction:
“We’re disappointed in today’s decision. Religious freedom should protect unwilling taxpayers from funding church property, not force them to foot the bill. The court’s ruling, however, focuses specifically on grants for playground resurfacing, and does not give the government unlimited authority to fund religious activity.”
The Center For Inquiry says the ruling “detonated a massive breach” in the Wall of Separation by writing such an ambiguous ruling.
“The Supreme Court has detonated a massive breach in the wall of separation between church and state,” said Nicholas Little, Legal Director of the Center for Inquiry. “In fact the justices have laid the groundwork for additional confusion and conflict, as they have they provided no real method for deciding whether future applications by churches for taxpayer subsidy will be acceptable or not.”
“This case was never really about a playground or recycled tires,” said Little. “This was about whether religious institutions can be eligible for public funds for what they claim are secular purposes. The Court has long held that the direct cash funding of religious organizations violates the Constitution. In paying for the renovation of its playground, the state of Missouri relieves Trinity Lutheran Church of a financial burden, which frees the church to use those funds for explicitly sectarian purposes. That is unacceptable.”
“It is all the more confounding that the plaintiffs were not even willing to say that the playground had no religious purpose, as the preschool for which it is used is considered part of the church’s religious mission,” said Little. “We are deeply concerned about what happens next, as other sectarian organizations find new and novel ways to siphon taxpayer dollars into their churches, temples, and mosques.”
The American Humanist Association also condemned the ruling:
“This decision, requiring the transfer of tax money from hard working Missourians to houses of worship, is an assault on the principle of church-state separation” said David Niose, the Legal Director at the AHA’s Appignani Humanist Legal Center. “By requiring state support of houses of worship, this ruling sets a dangerous precedent and will surely entangle religion and public policy going forward.”
American Atheists said the decision opens Pandora’s Box.
David Silverman, president of American Atheists, made the following statement:
“By striking down Missouri’s no-aid clause, the Court has opened Pandora’s Box. This case was about more than a playground. It was about whether unaccountable religious groups are entitled to receive taxpayer funding despite their complete lack of financial transparency. For the first time, this Court has decided that they are.
“Without the protection of these no-aid clauses, taxpayers are now being forced to directly subsidize religious denominations they do not support. That is fundamentally un-American and I am profoundly disappointed that the Court continues to erode the wall of separation between religion and government.
“We will continue to remain vigilant against any further attempts to direct taxpayer funding to churches and other houses of worship. Taken with the ongoing attempts to repeal the Johnson Amendment and turn churches into Super PACs, this decision represents a clear and profound threat to our democracy. We must demand full and equal accountability and transparency of all groups receiving tax-exempt status, including houses of worship.”
The Freedom From Religion Foundation said today’s ruling could “inflict incalculable damage” on church/state separation:
It has been a bright line rule since America’s founding that the government will not fund religion or the free exercise of religion. Today, the Supreme Court destroyed that rule, claiming that a government funding program that is not open to churches “violates the Free Exercise Clause.” This turns the steadfast rule on its head, admitting that government funds that flow to churches ultimately facilitate religious worship. Never in our history has the government been able to fund religious worship — until now.
This case shames the high court in another way: It should never have been decided. The state of Missouri, a week before the April oral arguments, changed its policy and permitted churches to compete for the grants, mooting the case. The court would kick most cases to the curb where the parties agree, but here, the majority simply passed over this in a footnote. Clearly, a majority on the ultra-conservative court was keen on using this opportunity to eviscerate many state provisions predicated on Thomas Jefferson’s original Virginia Statute for Religious Liberty.
Interfaith Alliance President Rabbi Jack Moline called the ruling a “dangerous precedent“:
“Today’s decision sets a dangerous precedent for religious freedom in the United States. On its face, the case is about a playground, but it’s really a stalking horse for a radical agenda that runs directly counter to core constitutional principles.
“Four of the justices backed language restricting the purview of the case to the specific matter at hand — playground resurfacing — but the larger decision threatens to undermine Establishment Clause and state restrictions preventing taxpayer dollars from subsidizing religious activities. The Religious Right is seeking to strip away these protections and gain access to taxpayer dollars to directly fund religious schools and institutions.
“This case was driven by Alliance Defending Freedom, a virulently anti-LGBT group that works to undermine church-state separation. They envision a future where the U.S. government is run by and for right-wing Christians. That is not a vision shared by the American public or the Constitution.
“Interfaith Alliance remains committed to genuine religious freedom — not discrimination disguised as freedom. We will spare no effort in upholding the integrity of the First Amendment.”
The Secular Coalition for America‘s Executive Director Larry T. Decker said the ruling “has paved the way for taxpayer-funded discrimination”:
“Today the Supreme Court has ruled that taxpayers must sometimes subsidize churches. By deciding that churches are eligible for public grants, the court has empowered government employees and state lawmakers to decide which religious institutions ought to receive taxpayer money. This is precisely the entanglement of religion and government that the wall of separation between church and state is intended to safeguard against. When taxpayer money is allowed to flow to religious institutions, it will inevitably be used to further the church’s explicitly religious mission. Taxpayers should not be compelled to support religious institutions and the state should not be empowered to pick winners and losers from among the many houses of worship competing for a finite amount of public money.
The court has ruled that the state cannot “discriminate” against church applications for public grants, however many churches can and do still discriminate against members of the public. If religious institutions receive public money to provide social services, those vital programs must be made available to everyone, including atheists, LGBT persons, or people of different faiths. The court’s decision in Trinity Lutheran v. Comer has paved the way for taxpayer-funded discrimination and the imposition of religious beliefs on vulnerable people who need help. The Trinity Lutheran v. Comer decision opens the door for an untold number of future policies that will blur the line between church and state.”
The question now is how religious groups will use this ruling in the future. Will they now argue that the government should help them renovate their buildings for safety reasons? That’s a “secular” purpose even though it ultimately helps them with their religious agenda. Will churches now delineate between their religious projects and their secular ones in order to get public money for the latter group? Will supporters of voucher programs use this as a defense to use taxpayer money for religious schools?
The line used to be that all church projects were inherently religious.
Today, the Court ruled that the line is somewhere in the middle. Where, we don’t know, but Sotomayor is clearly worried that with this budge, it’ll now move even further from the religious end. And we can expect religious organizations to use this decision to further blurs the distinction between church and state.
(Image via Shutterstock. Large portions of this article were published earlier)