For the first time, the Supreme Court has ordered a state to fund a religious group that had asked for funding under a state program. In the past, the court has ruled that the state may fund religious groups in some, but not all, instances. It has never said the state must do so.

In Trinity Lutheran v. Comer, the court held that the state cannot deny secular funding to a religious group just because it’s religious. Seven justices voted for the opinion, including two of the court’s liberal justices, Elena Kagan and Stephen Breyer. Sonia Sotomayor and Ruth Bader Ginsberg dissented.

Trinity Lutheran Church in Columbia, Mo., had applied in 2012 for a state grant to improve the playground surface of its child learning center. The playground was used mostly by neighborhood children. The state of Missouri rejected it. It claimed the grant would violate its constitution’s ban on funding religion.

Violates the Free Exercise Clause

Chief Justice John Roberts wrote the opinion. He said the state’s denial violates the First Amendment’s Free Exercise clause. The church was singled out since it’s 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,” he wrote.

In a footnote, he distinguished the grant from money directed to religious purposes. However, two of the conservative justices , Clarence Thomas and Neil Gorsuch, found this troubling. Gorsuch brought up some slippery slope examples. He wrote in a dissent to the footnote, “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?”

Surprisingly, Kagan joined in the whole majority opinion. Breyer concurred. However,  he chose to limit the scope to just the playground. He wrote, “I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.”

Religious liberty is a “classical liberal issue,” not a partisan issue.

Carrie Severino, chief counsel for the Judicial Crisis Network, said the two left-leaning justices agreed because religious liberty is not a partisan issue. It is a “classical liberal issue.” There used to be more bipartisan support for religious liberty. In 1993, Democrats in Congress joined with the GOP to pass the Religious Freedom Restoration Act. A Democratic president, Bill Clinton, signed it.

That has changed. In recent years, Severino said, a culture war has made religious liberty into a “bogeyman.”

‘Overblown’ Dissent by Small Minority of Justices

Sotomayor and Ginsburg worried that the decision opens the door to directly funding religious schools. As the 2004 SCOTUS decision Locke v. Davey held, state funding cannot be used for religious teaching. Today’s decision merely carves out an exception for the secular functions of a religious group.

This decision merely carves out an exception for the secular functions of a religious group.

Sotomayor’s response was “overblown,” Severino said. SCOTUS has already ruled in many cases involving state funds going to religion. With school vouchers, for example, parents decide where the money goes. They can direct it to a secular or religious school. The money is used for things like math books, not Bibles.

Others had agreed. The Baptist Joint Committee for Religious Freedom filed an amicus curiae brief — on behalf of the state. BJCRF reasoned that any state involvement with religion hurts a church’s autonomy.  Its general counsel claimed that the decision “does not create a free exercise right to government funding of religion, but it unnecessarily blurs the line that ensures religion flourishes on its own.” BJCRF represents the more liberal wing of the Baptists.

The End of the Blaine Amendments?

Today’s decision may affect the status of state Blaine Amendments. These are state constitutional provisions which prohibit state funding of religious organizations. Almost three dozen states have them. They have a very sordid history of anti-Catholic prejudice. This decision revealed that they may conflict with the U.S. Constitution’s Free Exercise clause.

However, in spite of these provisions, some states still award grant money to religious groups. In fact, after this case began, Missouri’s new Republican governor, Eric Greitens, announced that he was reversing the state’s policy that prohibited Trinity Lutheran from receiving the grant.

The decision’s reach is unclear. In later decisions, we should expect the court to test the extent to which a state can give money to a religious institution. At the least, the court’s decision prevents states from using these provisions to discriminate against religious groups.

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