Same-sex marriage. Abortion. Playgrounds?
Next to some of the more hot-button cases that have come up before the Supreme Court in recent years, Trinity Lutheran v. Comer, which was decided Monday morning in favor of Trinity Lutheran Church, seems almost incidental. The case began in 2012, when a Lutheran preschool in Columbia, Missouri, was denied state funds to purchase used rubber tires to resurface its playground because it’s a religious institution.
But despite (indeed, because of) the relatively un-dramatic facts of the case, Trinity Lutheran v. Comer could potentially be one of the most significant SCOTUS decisions of the year, setting the tone for generations of legislation about the separation between church and state on the state level, and potentially paving the way for more radical education reform, like the use of state vouchers for religious schools.
The case started small — over the purchasing of tire rubber for a playground surface
Back in 2012, several nonprofit organizations, including Trinity Lutheran Church, in Columbia, Missouri, applied for state grants to purchase recycled tire rubber. In Trinity’s case, the rubber would be used to repave the playground of its early childhood education center. The nonprofits were ranked by Missouri’s Department of Natural Resources, and Trinity came fifth of 44 candidates. The top 14 candidates were slated for funding, but Trinity was judged ineligible based on the state constitution, which states, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
The church sued Missouri’s director of natural resources, Sarah Parker Pauley, arguing that their ineligibility violated the federal First Amendment — they were denied free exercise of religion and freedom of speech — and the 14th Amendment, which guarantees equal protection under state law.
A federal district court for the Western District of Missouri dismissed the case, prompting Trinity to take the case to the Eighth Circuit Court of Appeals. The church argued once again that Article 7, Section 1 of Missouri’s constitution infringed on their First Amendment free exercise of religion (dropping the free speech argument) in addition to 14th Amendment rights. The circuit court affirmed the district court’s dismissal.
Finally, Trinity appealed to the Supreme Court in Trinity Lutheran v. Comer (Carol Comer is Pauley’s successor). In January 2016, the justices agreed to hear the case — only for conservative Justice Antonin Scalia to die a month later, leaving behind a split jury and an unfilled space for the remainder of that year. Since then, the case has been marked by a year of uncertainty, as the hearing was continually delayed — most likely due to the possibility of a four-four split in a divided court — while various interested parties filed amicus curiae briefs in support of one party or the other.
Finally, the Supreme Court, including recently confirmed Trump nominee Neil Gorsuch, started hearing oral arguments this spring. By then, the specifics of the Trinity Lutheran case were largely moot. On April 13, Missouri’s Republican Gov. Eric Greitens announced that Missouri would consider religious institutions for public funding, excoriating “government bureaucrats ... under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids.” But both parties agreed that the case should proceed anyway, in part because there’s no way to guarantee that Greitens’s policy is permanent.
Trinity v. Comer has seen high-profile supporters on both sides — and not always along expected sectarian lines
Supporters of the church argued that Missouri’s law, as it stands, is unconstitutional because it denies equal protections and treatment to the church only on the grounds that it is a church. As the Christian-affiliated American Center for Law and Justice, wrote in an amicus brief in support of the church, “while government may not establish a church, it also may not categorically relegate religious institutions to second-class status.” Here, the organization interprets Missouri’s law as a violation of the 14th Amendment.
It’s not just Christian-affiliated organizations that supported the church, either; the Union of Orthodox Jewish Congregations of America filed another brief arguing that the Supreme Court’s decision could set a precedent depriving Jewish schools of necessary funds for, say, disaster preparedness or security, exposing “religious institutions to significant health, safety and security dangers.”
There’s also a case to be made that aid to certain religious organizations’ outreach programs is in the public good, and to threaten them is to deprive vulnerable individuals of much-needed services. This is particularly pertinent when it comes to, say, Catholic hospitals, which comprise one in every six hospitals in the US. At what point does “common good” end and special treatment begin, especially when it comes to programs for funding that are meant to be open to all based on neutral criteria? As Supreme Court Justices Elena Kagan and Stephen Breyer pointed out during arguments, should a church be denied access to, say, police or fire protection? How were the health hazards of letting children play in an unsafe playground significantly different?
Supporters pointed to other cases in which long-held state laws known as Blaine Amendments (initially enacted to counter the influx of immigrants by barring federal aid to Catholic organizations) have been used to threaten religious or religiously affiliated organizations that have partnered with the state to affect a public good. For example, in Florida, two Christian prison-ministry organizations that partnered with the state to provide services — the Prisoners of Christ and Lamb of God ministries, which catered to recently released felons — were three times more successful than the national average when it came to preventing recidivism. In 2016, the humanist group Center for Inquiry challenged the funding legally but were unsuccessful.
Perhaps even more convincingly, because Trinity Lutheran’s aims in this situation are entirely secular (i.e., paving a playground), their supporters argued that the case couldn’t be compared to, say, the precedent of Locke v. Davey (where money couldn’t be used to fund theological training).
On the other hand, supporters of the state pointed out that — despite the relatively benign goals of Trinity Lutheran’s playground-building — it opened the floodgates for taxpayer subsidizing of any “secular” part of a religious organization’s expenses that might be deemed to be for the common good. Secularist blogger Hemant Mehta at religion blog network Patheos gave the example of building a gym at the late Jerry Falwell’s Liberty University that was officially open to the public, but served to make the institution more attractive to potential students.
Plus, any precedent allowing state funds to flow to religious institutions could be used to legitimize discrimination on religious grounds. In LGBTQ-advocacy group Lambda Legal’s amicus brief, for example, the organization argued that “There should be no possibility that a child and her same-sex parents are fenced out of Trinity, left to gaze at a publicly funded playground they may not enter, as its use is reserved solely for children from preferred religious tradition as a place to play and pray. The fence belongs instead precisely where Article I, § 7 erects it: separating Church from State.”
Likewise, the National Education Association argued that, “While there is a long and honorable history of taxpayer funds being used to support faith-based institutions in their provision of secular social services, any such funding must be accompanied, in AJC’s view, by adequate church-state safeguards. Among other things, this means that public grants or contracts should not be used to fund “pervasively religious organizations” whose religious mission is inextricably intertwined with the provision of services.”
The state also had some perhaps less-expected defenders. For example, the Baptist Joint Committee for Religious Freedom has come out against Trinity Lutheran, arguing that safeguards are necessary to protect religion from government interference. In a statement to the press shortly after filing an amicus brief in defense of the state, Holly Hollman, the BJC’s general counsel, said, “Baptists and other religious dissenters in colonial America fought to ensure that the coercive power of the government was not used to force taxpayers to pay for churches. The result has been a rich flowering of religion and religious institutions, funded by voluntary gifts and offerings.”
The longer-term implications of the Supreme Court’s decision are, as yet, unclear. But as the Supreme Court’s attention turns toward more religious-exemption cases — they’ve just agreed to hear the appeal of a Christian baker who refused to make a cake for a same-sex couple — it’s evident that the uneasy relationship between church and state in America won’t become any simpler anytime soon.