Goodbye, Establishment Clause

By Perry Grossman and Mark Joseph Stern

Does the Constitution sometimes obligate states to subsidize religion? On Monday, the Supreme Court said it does. According to the court’s 7–2 ruling in Trinity Lutheran v. Comer, when a state makes a funding program available to the public, it cannot deny funds to a church because of its status as a religious organization. This sets a dangerous precedent, one that betrays the court’s historical commitment to true religious freedom and threatens to obliterate the divide between church and state.

The facts of the case are simple. Trinity Lutheran Church owns a “Learning Center” that is used “to teach the Gospel to children.” The learning center’s facilities include a playground that is, in the church’s words, part of “an education program structured to allow a child to grow spiritually, physically, socially, and cognitively.” In 2012, the church applied for a grant through Missouri’s Scrap Tire Grant Program to help pay for playground resurfacing. The state rejected its application, citing a provision of the Missouri Constitution that bars the use of taxpayer money “in aid of any church, sect, or denomination of religion.” Trinity Lutheran sued, alleging a violation of its Free Exercise rights under the First Amendment.

In his opinion for the court, Chief Justice John Roberts held that Missouri had run afoul of the Free Exercise Clause by denying Trinity Lutheran a “public benefit solely because of [its] religious character.” According to Roberts, the Missouri rule “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.” This “clear infringement on free exercise,” he asserted, “is odious to our Constitution.” Thus, Trinity Lutheran must be allowed to compete in the scrap tire program.

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