Trouble in the Sandbox: A Postmortem of Trinity Lutheran Church of Columbia v. Comer

What a mess.

Recycled tires, decrepit playgrounds, scraped knees, footnote 3. The Supreme Court of the United States’ decision in Trinity Lutheran Church of Columbia v. Comer was a lot of things, but explicit was definitely not one of them. In the wake of what seems to be a tentative victory for theocrats and religious conservatives, a lot of secular Americans are asking: What does this mean for me?

The answer, as it so often is with Supreme Court decisions, is: it depends. But before we get to the legal nitty gritty, what was this case all about anyway?

The facts are simple enough. Trinity Lutheran Church in Columbia, Missouri, operates a preschool and daycare center that incorporates Christian teaching and proselytization into their daily activities. In 2012 Trinity applied for a grant through a program administered by the Missouri Department of Natural Resources (MDNR), which provided funding to upgrade school playground surfaces to a rubberized finish made from recycled tires. Trinity requested $20,000 to upgrade the old pea gravel surface of its children’s learning center playground to the new rubber material. The MDNR, recognizing that the Missouri State Constitution prohibits the flowing of public funds to religious institutions, denied Trinity’s application. Litigation ensued.

After losing in both the District Court and Eighth Circuit, Trinity appealed to the Supreme Court. The issue turned on the First Amendment, specifically the Free Exercise Clause and the Establishment Clause. Was the MDNR’s denial of Trinity’s application a valid safeguard against the establishment of a religion, or did it impede Trinity’s freedom to exercise its religion?

Interestingly, the case was put on hold for almost a year and a half, ostensibly because of Justice Antonin Scalia’s death after the court granted certiorari. Everyone, even the Supreme Court it would seem, expected this to be a close case. It was not.

Seven justices joined in the judgment of the court—Chief Justice Roberts (who wrote the opinion), and Justices Alito, Breyer, Gorsuch, Kagan, Kennedy, and Thomas. Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. Breyer wrote a concurrence joining in the judgment of the Supreme Court but not Roberts’ opinion. Gorsuch and Thomas each wrote a concurrence joined by the other, and both joined Roberts’ opinion in full except as to footnote 3. More on that in a moment.

SCOTUS, in a rather impressive display of verbal gymnastics, held that the MDNR’s refusal to allocate public funds to Trinity violated its freedom to exercise its religion. You read that right. The court reasoned that by denying Trinity’s application for its “generally available” benefits program due to Trinity’s religious status, the MDNR violated Trinity’s free exercise rights by forcing Trinity into a position where it could either be eligible for the funds or be a church. Moreover, the court found that there was absolutely no Establishment Clause issue with requiring the government to consider religious institutions for these types of publicly funded programs. You can’t make this stuff up.

Sotomayor, who I’m sure felt like she was in the twilight zone when the straw vote was under way, wasn’t having it. “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.” In recounting the secular history of the early states, the federal government, and the Founding Fathers, Sotomayor lamented the potential ramifications this decision might have on Establishment Clause jurisprudence, noting that the majority was either mistaken to the facts or complicit in dismantling the wall of separation. “The [c]ourt 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.”

So, back to the question secular Americans are asking: Where does this leave us? It depends on how courts interpret the scope of the ruling. Which brings us back to footnote 3. Roberts, apparently acknowledging that a broad ruling might have resulted in another 5-4 vote, included this text in footnote 3: “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 problem is that Breyer (by virtue of his joining only in the judgment), Gorsuch, and Thomas did not join with this footnote, rendering it not part of the court’s opinion. Complicating matters further, it would appear that Breyer, through the language of his concurring opinion, agrees with the limiting scope of footnote 3. And no doubt Sotomayor and Ginsburg would as well. But since it is not technically a part of the opinion, any controlling value of this footnote would need to be assumed by a court.

The difference is rather stark. Should footnote 3 control, states will only be required to consider religious institutions for public funding programs relating to playground renovations. Should it not control, states may be required to funnel money to religious institutions for all “generally available” public funding programs, such as school vouchers.

So, fellow secularists, while it’s not quite Armageddon for the Jeffersonian wall of separation, the Supreme Court is definitely kicking sand in our face. The religious right is no doubt going to open the floodgates of litigation to test the limits of this ruling. We could see legal action ranging from challenges to state constitutions that explicitly prohibit public funds being given to religious institutions (as in this case), to challenges over exclusion of religious institutions from direct school funding. Indeed, Gorsuch (the newest justice on the block) seemed to be hostile to any limitation at all for religious institutions, arguing that he could see no clear value in distinguishing between limiting public funds based on religious “status,” and limiting based on the religious “use.” In Gorsuch’s world, public funds should flow freely to churches and monasteries, even if they were to use those funds expressly for religious indoctrination.

Thus, while Trinity may have been limited to a playground, it definitely was not all fun and games. We are on notice. Time to buckle up for the legal fights ahead.