When the Supreme Court ruled 7-2 in favor of Trinity Lutheran Church last year, there was good reason to worry. This was the case that asked whether the state of Missouri could give a taxpayer-funded grant to a church to renovate its playground. The state said no because it was forbidden from supporting religion with public money, but church leaders said they were being discriminated against for being religious; after all, this was just a playground, not something directly promoting the Christian faith.
The Supreme Court agreed with the church. They said that taxpayer funds could go to religious institutions as long as the money wasn’t directly promoting religion. (Justice Sonia Sotomayor issued a scathing dissent against her colleagues’ interpretation of the law.)
The question remained, though: How far could religious groups push that?
We’re beginning to learn the answer, and it’s terrifying. Slate‘s Mark Joseph Stern does an excellent job recapping the case of Moses v. Ruszkowski which was argued this week in front of the New Mexico Supreme Court. It’s essentially a follow-up to Trinity, grappling with the issue of whether taxpayer funding should cover secular textbooks at religious schools.
The New Mexico Supreme Court had previously said no. If taxpayers are covering, say, math books at a Catholic school, that frees up money that the school can then use to proselytize. It promotes religion, if perhaps indirectly. But in light of Trinity, they’re reassessing the case and leaning, it seems, in the opposite direction.
“How do we get around Trinity?” Justice Petra Jimenez Maes asked Frank Susman, who argued that religious schools may not get free textbooks under the state constitution. “We have to apply that principle,” Maes asserted. “I’m having trouble saying Trinity does not apply to this section.”
Although the justices seemed divided — and clearly concerned about the Establishment Clause implications of the case — they all sounded eager not to get reversed by the U.S. Supreme Court. To play it safe, a majority of the justices sounded prepared to interpret Trinity Lutheran broadly. Their ruling, expected within the next few months, may vindicate Sotomayor’s fears, taking the case’s principle far beyond a single church playground.
Sotomayor made clear in her dissent that allowing government funding of a church playground could become a slippery slope:
The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.
She was right. And now New Mexico is on the verge of letting taxpayers foot the bill for textbooks at religious schools. At what point will we all have to pay for vouchers for those schools?
At least in the New Mexico case, Stern notes there may be an out: Because the constitution prohibits funding to all private schools — rather than singling out religious ones — there’s an argument to be made that Trinity doesn’t apply here. But it’s not clear how persuasive that argument was amongst his colleagues.
The wall between church and state was shattered last year, and it appears that the Supreme Court, with the help of a seat stolen by Republicans, has every intention of tearing down the rest of it too. Even if the Court isn’t deciding the case, its shadow is long enough to have a serious effect.
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