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Supreme Court says public money can go to churches (for playgrounds)

A closely watched Supreme Court case on the separation of church and state ended Monday in what likely amounts to a draw for advocates of school choice and civil libertarians.

Despite the 7-2 ruling in favor of allowing a Missouri church to use public funds, the Supreme Court added a brief footnote to its majority decision that helped it to avoid any larger questions about the constitutionality of funneling state money to religious organizations.


It all started with a playground dispute. Back in 2012, Trinity Lutheran Church, in Columbia, Missouri, applied for a state grant to resurface the playground of the daycare and preschool it runs. The grant was designed specifically for nonprofits that wanted to upgrade their playgrounds, but the state denied the church’s application because the state constitution forbid state money from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

Trinity Lutheran sued, arguing that the playground itself was essentially secular and that the state’s refusal violated the federal Constitution’s equal protection clause and the First Amendment’s guarantee of freedom of religion.

After a federal district and federal appeals court found in favor of the state, the Supreme Court agreed to take up the issue — but then waited to rule on it for more than 15 months, until a ninth justice could be appointed, apparently in order to avoid risking a 4-4 tie.

Religious liberty and school choice advocates hoped a ruling in the church’s favor would advance the cause of directing state funds toward religious organizations, including parochial schools, since Missouri is just one of 37 states that bars state funds from going to religious groups. That ban, these advocates say, discriminates against kids who choose to attend religious schools because they cannot receive state-funded tuition vouchers.


The case was seen as momentous for questions of separation of church and state, but in his majority opinion, Chief Justice John Roberts downplayed its importance, stressing that the case was ultimately about the need to make sure kids are free to play safely on their playgrounds.

“The consequence is, in all likelihood, a few extra scraped knees,” Roberts wrote, finding that the state had indeed violated the First Amendment. “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.”

In a footnote tucked at the bottom of page 14 of the 15-page majority opinion, four justices who joined the majority made it clear that Roberts’ words were about playgrounds — and about playgrounds only — suggesting that the Court will leave broader questions about the separation of church and state for another day.

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

Dick Komer, a senior attorney at the pro–school choice Institute for Justice, said in an interview that he wasn’t surprised by the footnote. He knew that the Trinity decision would likely be narrow.

Still, he said, “we’re really happy with the decision. It would be great if, you know, footnote three weren’t there,” Komer said. “But at the same time, knowing how the Supreme Court works and what it’s supposed to be doing, this is a step in the right direction in an incremental process.”

Komer also pointed out that Justices Clarence Thomas and Neil Gorsuch didn’t join in the footnote, despite concurring with the majority opinion. That could mean they’re comfortable with applying their decision in this case to school vouchers.

And Justices Sonia Sotomayor and Ruth Bader Ginsberg, who dissented, are far from convinced that the majority’s footnote does enough to stop those broader applications.

“This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state,” Sotomayor wrote in their dissent. “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.”