Written by Don Byrd

Monday’s troubling ruling in Trinity Lutheran Church v. Comer was the first major Supreme Court decision in several years to focus on government funding of religion. As the Baptist Joint Committee’s Holly Hollman quickly responded, “the Court’s decision upends precedent and adds confusion to the law.”

As I read through the decision a second time the next day, I was struck by the strong statements from the dissent of Justice Sonia Sotomayor, which was for me the highlight of the opinion. I also found some areas of interest in Justice Neil Gorsuch’s concurring opinion. 

I thought blog readers may be interested in excerpts from those concurring and dissenting views that caught my attention.

Gorsuch: Justice Gorsuch seemingly would have gone even further than the majority in allowing government funds to flow to religious institutions. Even though that conclusion may be troubling, his starting point offers a compelling critique of a central plank in the majority’s reasoning. Here are a couple of excerpts from his brief concurrence.

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. 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? 

I don’t see why it should matter whether we describe [a government] benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). . . .

[R]eliance on the status-use distinction does not suffice for me…

Sotomayor: Justice Sotomayor’s dissenting opinion, joined only by Justice Ruth Bader Ginsburg, was a tour de force in defense of the Establishment Clause and the historic principle that using government money to fund religion is bad for both the church and the state. Here are several excerpts:

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.

A state can reasonably use status as a “house of worship” as a stand-in for “religious activities.” Inside a house of worship, dividing the religious from the secular would require intrusive line-drawing by government, and monitoring those lines would entangle government with the house of worship’s activities. And so while not every activity a house of worship undertakes will be inseparably linked to religious activity, “the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.”

Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.

If the denial of a benefit others may receive is discrimination that violates the Free Exercise Clause, then the accommodations of religious entities we have approved would violate the free exercise rights of nonreligious entities. We have, with good reason, rejected that idea…

A State’s decision not to fund houses of worship does not disfavor religion; rather, it represents a valid choice to remain secular in the face of serious establishment and free exercise concerns. That does not make the State “atheistic or antireligious.”

At bottom, the Court creates the following rule today: The government may draw lines on the basis of religious status to grant a benefit to religious persons or entities but it may not draw lines on that basis when doing so would further the interests the Religion Clauses protect in other ways. Nothing supports this lopsided outcome. 

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.

The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. 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. 

You can read the entire opinion here, which includes the concurrences and the dissent.

For more, see the BJC’s Trinity Lutheran Church resource page.