Outside the Beltway

Supreme Court Strikes Down Bar On Secular Aid To Church-Run Schools

The Supreme Court ruled today that states may not exclude church-run schools from an aid program with a wholly secular purpose.

Doug Mataconis · Monday, June 26, 2017 · 16 comments

In a case that may well be the biggest Supreme Court ruling on the separation of Church and State in quite some time, the Supreme Court ruled today that a Missouri law that barred schools operated by religious institution from participation in a state program to aid schools in the costs associated with making school playgrounds safer for children violated the Free Exercise Clause of the First Amendment:

In the church-state case, the court ruled 7-2 that it violates the Constitution’s protection of the free exercise of religion to exclude churches from state programs with a secular intent — in this case, making playgrounds safer.

Missouri’s state constitution, like those in about three dozen states, forbade government from spending any public money on “any church, sect, or denomination of religion.”

Trinity Lutheran Church in Columbia, Mo., wanted to participate in a state program that reimburses the cost of rubberizing the surface of playgrounds. But the state said that was not allowed.

The exclusion has raised big questions about how to uphold the Constitution’s prohibition on government support for religion without discriminating against those who are religious.

“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 … and cannot stand,” wrote Chief Justice John G. Roberts Jr.

The church had ranked high enough in its application for the safety surface that it would have received the grant, but for the denial from the state’s natural resources department.

“The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant.”

Roberts was joined by the court’s conservatives as well as one of its liberals, Justice Elena Kagan. Another liberal, Justice Stephen G. Breyer, agreed with the outcome of the case.

Roberts made a concession that may have drawn some votes. In a footnote, he said “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.”

The two dissenting votes came from Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Sotomayor issued a stinging dissent, and made clear her displeasure by summarizing it from the bench after Roberts announced the decision.

She said the ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

She concluded: “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.”

Some states with the same restriction as Missouri already allow churches to participate in programs that are generally applicable to the public and are for secular benefits such as health and safety.

Adding a twist to the case, Missouri now does as well. The state’s new Republican governor, Eric Greitens, announced just before the April oral argument that he was reversing the policy that denied Trinity’s application in 2012 and that churches are now eligible to participate.

Eugene Volokh has a wholesale analysis of the Court’s opinion, and SCOTUSBlog’s Amy Howe summarizes the opinion:

With his relatively brief – only 15 pages – opinion, Roberts seemed to regard the case as a relatively straightforward one. He explained that under the Supreme Court’s cases interpreting the free exercise clause, the government needs a very good reason to rely on someone’s religious identity to deny him a benefit that would otherwise be generally available. And here, he continued, that is exactly what the state’s policy does: It discriminates against the church by barring it from receiving the playground funding just because it is a church. The church cannot both continue to operate as a church and receive the funding; it has to choose between the two. Moreover, Roberts added, the state has not provided anything close to the kind of compelling reason that it would need to exclude the church from the program: All it has said is that it wants to try to steer clear of concerns about violating the Constitution’s establishment clause, which bars the government from favoring religion.

In conclusion, Roberts acknowledged that the stakes in this case were relatively low, noting that the result of the state’s policy “is, in all likelihood, a few extra scraped knees” if the church could not replace its gravel playground with the softer rubber surface that the state’s program would fund. “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church,” Roberts continued, “is odious to our Constitution all the same, and cannot stand.”

Justices Anthony Kennedy, Samuel Alito and Elena Kagan joined the Roberts opinion in full. Justices Neil Gorsuch and Clarence Thomas joined almost all of the Roberts decision. In a separate opinion joined by Thomas, Gorsuch suggested that the Roberts opinion left “open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.” But that line is hard to draw, Gorsuch continued, and the distinction shouldn’t matter anyway. Gorsuch and Thomas also declined to sign on to the third footnote in the Roberts opinion, which emphasized that the issue before the court in this case was “express discrimination based on religious identity with respect to playground resurfacing” and that the court was not weighing in on “religious uses of funding or other forms of discrimination.” Gorsuch agreed that the footnote was “entirely correct,” but he expressed concern that the footnote could be interpreted to indicate that today’s ruling applies only to playground cases “or only those with some association with children’s safety or health.” To the contrary, he concluded, what matters in the Supreme Court’s cases are general principles, which “do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

(…)

Justice Sonia Sotomayor dissented, in an opinion (joined by Justice Ruth Bader Ginsburg) that she summarized from the bench – a signal that she strongly disagrees with today’s ruling. Sotomayor lamented that even if the court depicted the case as a simple one “about recycling tires to resurface a playground,” it was in fact “about nothing less than the relationship between religious institutions and the civil government—that is, between church and state.” “The Court today,” she continued, “profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” But if the separation of church and state means anything, she concluded, “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.” Another sign of Sotomayor’s discontent: She closed both her written opinion and her summary from the bench with the phrase “I dissent,” rather than the traditional phrase “I respectfully dissent.”

This case was the first major case in which the Court has had its full complement of nine members since Justice Scalia died in February of last year, and was the first major case that Justice Neil Gorsuch participated in as a Supreme Court Justice. Not surprisingly, he ended up with the conservatives on the Court, but then so did Justices Kagan and Breyer, an indication that this wasn’t necessarily a decision in which there was quite the traditional left-right split that you might expect. The only issue on which there wasn’t a complete agreement in the majority opinion, in fact, was the aforementioned footnote to the decision in which the Court states “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.” In this footnote, obviously, Chief Justice Roberts was obviously sending a signal to lower courts who are now likely to be dealing with future challenges to State or Federal law or policies that similarly discriminate between religious and secular institutions that the Court’s ruling today doesn’t necessarily apply to a future case relating to other forms of aid to schools or other that may impact religious-run institutions.

In this case, the fact that the main purpose of the state subsidy program was to ensure that playgrounds in schools seems to me to be a good reason for the Court to find that the law barring sharing that aid with religious-run schools was an arbitrary denial of assistance simply because the school is run by a church rather than a government entity or non-religious private entity. As I noted at the time the Court heard oral argument, unlike a program that may apply to actual educational content, this case involves a goal, the safety of schoolchildren, that would seem to apply regardless of the religious nature of the educational institution or the lack thereof. Just as it would be unacceptable for the state to adopt an aid program that only applied to playgrounds at church-run schools, it simply doesn’t make sense for the law to bar the same assistance merely because the school is operated by a church. If the goal is child safety, then that concern should be the sole guide, not who the operator of the school happens to be. Additionally, it doesn’t seem to me that providing aid for playground construction does anything to advance a religious agenda in violation of the Establishment Clause. Instead, it would clearly seem to be an impermissible singling out of church-run schools that violate the Free Exercise Clause.

It’s also worth noting the history behind the Missouri law that was at issue in the case. Missouri’s blanket ban on aid to church-run schools has its root in so-called Blaine Amendments that were adopted by a number of states in the late 19th Century and designed to target religious-run schools in general and those run by the Catholic Church in particular. There was an effort to place such a ban in the U.S. Constitution during the late 1800’s that was ultimately unsuccessful, and many of the states that adopted a version of the amendment for themselves have since repealed it. Missouri remains one of the handful of states that still has a strict version of the Blaine Amendment in effect, and today’s ruling will obviously have an impact on just how far-reaching that amendment will be in the future. The point in noting this history is that there was a clear discriminatory intent behind these laws, specifically as it applied to Catholics, and that seems to have played a role in how Missouri’s version of the ban has fared in the Court. What today’s decision may mean for whether these amendments are now effectively dead letters remains to be seen.

Here’s the decision:

Trinity Lutheran Church v. Comer by Doug Mataconis on Scribd