By BJC General Counsel Holly Hollman

Among a flurry of decisions at the end of the term, the U.S. Supreme Court released its long-awaited decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, the so-called “church playground case” that addresses the relationship between government funding programs and churches. In short, the Court held that Missouri’s policy of excluding churches from a public benefit program because of its religious status violated the Free Exercise Clause. The ruling is decidedly narrow, but also deeply troubling.

It is troubling because the majority, in an opinion written by Chief Justice John Roberts, ignored the historical and practical basis for preventing government funding of churches. Treating churches in a distinct way has long been part of our religious liberty tradition. A basic principle of America’s religious liberty law holds that the Establishment Clause of the First Amendment forbids the government from advancing religion. In addition, Missouri’s state constitution, like those in 38 other states, categorically bans government funding of churches. These state “no establishment” provisions, many that pre-date the federal constitution, also protect against government funding of religion, but do so in different and sometimes more explicit ways. In fact, Missouri’s prohibition on government funding of churches has been in place since its first constitution was adopted in 1820. Yet, Trinity Lutheran Church argued that its playground should be treated like all others because the Free Exercise Clause prohibits “discrimination” based on religion.

The BJC, joined by the United Church of Christ, filed an amicus brief supporting the state. We defended the policy against government funding of churches, explaining the long-standing and practical religious liberty interests for treating churches differently. The policy reflects the lessons of history. Only by ignoring that history could one cast Missouri’s rule against direct government funding of churches as a “discriminatory” penalty against religion instead of an important protection for it. Unfortunately, that’s exactly what the Court did.

The use of public funds to support churches was a hallmark of religious establishments. Religious dissenters, often led by Baptists, fought against tax support for churches as a threat to religion and civil government. As described in the dissent, written by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg, the arguments for voluntary support of religion and against the government’s authority in religious matters ended state establishments, creating stronger protection for religious freedom. By slighting this history, the Court’s decision threatens confusion about the separation of church and state and how it serves religious liberty.

Fortunately, the scope of the ruling was decidedly limited. It does not support government funding of religious exercise and teaching, nor the funding of churches in general. It leaves many questions about government funding of religious institutions for another day. While it is the first time the Court has upheld a direct government grant to a church, the Court maintains the basic constitutional principle that forbids government advancement of religion. For us, and as the dissent recognized, this principle is clearly implicated “when funds flow directly from the public treasury to a house of worship. A house of worship exists to foster and further religious exercise.” But for the majority, the case did not involve government funding of religion; it was simply about a public benefit to promote safety. With a carefully worded footnote, Chief Justice Roberts said so. Limiting what would otherwise be a more disturbing departure from our religious liberty foundations and the Court’s precedents, footnote 3 says: “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.” (emphasis added)

The Court’s limiting footnote undercuts claims by supporters of Trinity Lutheran Church who argue that the case is a sea change for the funding of religious institutions. We don’t know how this decision will affect other funding programs designed to avoid government funding of religion, or whether treating churches differently for other reasons, such as avoiding regulatory burdens, will also be held to be a form of discrimination. We do know that an essential part of our religious liberty tradition is avoiding tax support for religion – and the Court holds on to that. Fortunately, the decision cannot reasonably be read to allow, much less require, states to fund religious activities.

It seems a gross exaggeration to equate the state’s safety interest in this program to encourage rubberized playground surfaces to that interest that guarantees equal treatment for fire and police protection. Yet, the majority took that approach, holding that excluding churches from funding programs (at least ones that are not explicitly for religious use) “is odious to our Constitution and cannot stand.” While the holding of this decision may be narrow, its tone is unfortunate and ahistorical, as aptly noted in the dissent.

As Justice Sotomayor catalogs the rejection of state religious establishments, she writes: “The course of this history shows that those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship. To us, their debates may seem abstract and this history remote. That is only because we live in a society that has long benefited from decisions made in response to these now centuries-old arguments, a society that those not so fortunate fought hard to build.”

From the July/August 2017 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.