New York Times

Church Wins Ruling Over Access to Public Funding

June 27, 2017

by Adam Liptak

WASHINGTON — The Supreme Court ruled on Monday that states must sometimes provide aid to religious groups even when their state constitutions call for a strict separation of church and state. The decision concerned a state program to make playgrounds safer that excluded those affiliated with churches, and it had implications for all kinds of government aid to religious institutions.

The vote was 7 to 2, though some of the justices in the majority differed about how broadly the court should have ruled.

Chief Justice John G. Roberts Jr., writing for the majority, said unjustified government discrimination against churches and other religious institutions is odious and unconstitutional. Officials in Missouri, Chief Justice Roberts wrote, were not entitled to reject a 2012 application from Trinity Lutheran Church, in Boone County, Mo., for a grant to use recycled tires to resurface a playground.

“The consequence is, in all likelihood, a few extra scraped knees,” Chief Justice Roberts 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.”

Justice Sonia Sotomayor summarized her dissent from the bench, an indication of deep disagreement.

“This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state,” Justice Sotomayor wrote in her dissent, which was joined by Justice Ruth Bader Ginsburg. “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.”

The Missouri Constitution bars spending public money “directly or indirectly, in aid of any church,” and the state Supreme Court has called for “a very high wall between church and state.” Thirty-eight other states have similar provisions.

The Missouri recycling program was not available to all applicants. But the church ranked fifth among 44 applicants, and it was rejected solely because of its religious character. The state awarded 14 grants that year.

“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit,” Chief Justice Roberts wrote. “The rule is simple: No churches need apply.”

Chief Justice Roberts added a footnote that limited the sweep of his opinion.

“This case involves express discrimination based on religious identity with respect to playground resurfacing,” he wrote. “We do not address religious uses of funding or other forms of discrimination.”

Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, refused to endorse that footnote.

“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,” Justice Gorsuch wrote.

“Such a reading would be unreasonable for our cases are ‘governed by general principles, rather than ad hoc improvisations,’” he wrote, quoting an earlier decision.

“And the general principles,” Justice Gorsuch wrote, “here do not permit discrimination against religious exercise — whether on the playground or anywhere else.”

Where Justices Gorsuch and Thomas would have written more broadly, Justice Stephen G. Breyer, who voted with the majority but did not adopt its reasoning, said he would have written more narrowly.

“Public benefits come in many shapes and sizes,” Justice Breyer wrote. “I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.”

A 2004 Supreme Court decision, Locke v. Davey, allowed Washington State to offer college scholarships to all students except those pursuing a degree in devotional theology. That case involved direct support for religion, Chief Justice Roberts wrote. Playgrounds, he argued, were a different matter.

In her dissent, Justice Sotomayor said the court had made a grave error in ruling for the church.

“The church has a religious mission, one that it pursues through the learning center,” she wrote. “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.”

More broadly, she wrote, states should be allowed to make their own judgments about whether to support religious groups.

“The constitutional provisions of 39 states — all but invalidated today — the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside,” Justice Sotomayor wrote, adding that the decision may have unintended consequences.

“In the end, the soundness of today’s decision may matter less than what it might enable tomorrow,” Justice Sotomayor wrote. “The principle it establishes can be manipulated to call for a similar fate for lines drawn on the basis of religious use.”

The case, Trinity Lutheran Church v. Comer, No. 15-577, took some twists and turns at the Supreme Court.

The court agreed to hear the case in January 2016, the month before Justice Antonin Scalia died. Apparently fearing a deadlock, it waited more than a year to schedule arguments, an exceptionally long time.

It was finally argued in April, soon after Justice Gorsuch joined the court, and it was easily the most important case of his freshman term.

Not long before the argument, Gov. Eric R. Greitens of Missouri, a Republican, announced a change in state policy. The state would no longer discriminate against religious groups in evaluating grant applications for programs like the one at issue in the case, he said.

Chief Justice Roberts wrote that the case was not moot under the doctrine of “voluntary cessation.” The state remained free, he wrote, to “revert to its policy of excluding religious organizations.”