The Supreme Court’s ruling on a high-profile case involving a church’s day-care playground surfaces will likely be used in church-state battles in the future, experts believe. The decision, released on Monday, involving a church in Missouri was seen as a victory for many advocates and a blow to those who wanted to see a high wall of separation between church and state.
The ruling has raised questions over state funding of religious institutions’ secular activity, especially what it could mean for school vouchers. The court ruled 7-2 that religious organizations may not be excluded from state programs if they have a secular intent, raising questions over church-state separation without discriminating against those who are religious.
The specific church involved in the case, Trinity Lutheran Church in Missouri, wanted to participate in a state program that reimburses the cost of rubberizing playground surfaces. The state, however, said Trinity Lutheran was not allowed to participate.
If the church lost the case, some were worried that religious institutions could be barred from receiving public funding. For instance, could churches be considered ineligible for funding after natural disasters? And why did some justices disagree over a small footnote in the final ruling?
The question over whether religious institutions should receive government funding has been widely debated since President George W. Bush proposed a faith-based initiative where religious groups could apply for funding to provide social services. Where it gets complicated is the question of what constitutes funding or support for religion by the government, said Charles Haynes, director of the Religious Freedom Center at the Newseum.
In the majority opinion, the justices argue that excluding religious groups from this kind of state funding would discriminate against them based on religion. Haynes said he expects religious groups to apply for and receive government funding for a wide range of purposes, even in the 30-plus states that have Blaine Amendments that prohibit state funding of religious organizations, including schools.
The ruling, said Douglas Laycock, a professor at the University of Virginia Law School, means that Blaine Amendments are unconstitutional in at least some of their applications. “The question is how many applications, or which applications,” he said. “The case is not just about playgrounds.” He expects it will be easier for funds to go to religious institutions. In Colorado, the state court said the state’s Blaine Amendment barred religious schools from participating in a school choice program, and Laycock expects that it will be readdressed by the court.
Some of the Blaine Amendments are written in a way that could still prevent funds from going to religious institutions, said Daniel Hemel, a professor at University of Chicago Law School. For instance, he said, Connecticut has an amendment that says “no law shall ever be made, authorizing [the School Fund] to be diverted to any other use than the encouragement and support of public schools.” Even though it would essentially prevent religious institutions from receiving public funds, the Connecticut law doesn’t target churches, so it is likely fine, unlike some of the wording of other amendments.
But this Supreme Court ruling, Hemel said, could give some people a new argument for including religious institutions in subsidy programs and invalidate subsidy programs that were written before this case.
The debate over footnote 3
A small footnote in the ruling became a hot topic of debate among observers after the decision was handed down.
Chief Justice John G. Roberts Jr. wrote the majority opinion, but Justice Neil M. Gorsuch and Justice Clarence Thomas did not join a footnote where four justices state, “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.” Because only four justices joined that footnote, it is technically not considered the opinion of the court.
Experts believe that the footnote in the case will be used in future church-state litigation. Does the decision limit the application of the ruling by focusing on “playground resurfacing” in this footnote? Or does the decision open the door to religious groups receiving government funds for a wide variety of purposes? Haynes of the Newseum believes the decision opens the door to funding.
“For those concerned about government entanglement with religion, this trend — and this case in particular — is a blow to the separation of church and state and thus to religious freedom,” Haynes said. “For those concerned to roll back previous Court decisions upholding a strict separation of church and state, this decision will be seen as a victory for religious freedom.”
In one sense, the ruling is narrow, said Richard Garnett, a professor at Notre Dame Law School, and Blaine Amendments aren’t simply thrown out. “Although Footnote 3 is mysterious, it seems to me that the reasoning in this case should mean that, for example, excluding an otherwise eligible religious school from a school-choice, voucher, scholarship or tax-credit program would be difficult to justify,” Garnett said. “Although this particular case is about playground surfaces … its rule and reasoning certainly applies more broadly.”
Several advocates feared that if the court ruled the other way, religious institutions could be excluded from other government funding. Kim Colby of the Christian Legal Society said she believes this will open religious institutions to apply for other security-related programs, such as anti-terrorism security programs, FEMA programs after natural disasters or government programs to replace lead in their water or asbestos in their ceilings.
“Given the scope of government programs, this is an important holding in protecting religious organizations and individuals from discriminatory exclusion from the public square,” Colby said.
The decision will likely ease some funding restrictions for religious organizations, said John Inazu, a professor at Washington University in St. Louis. “But the suggestion that these changes will somehow obliterate the ‘wall of separation’ ignores the many ways in which government funding already benefits religious institutions through tax benefits, grants, partnerships, even police and fire services,” he said.
Several observers say the court’s decision was narrow and won’t be able to be used for other questions over state funding of religious institutions for secular purposes.
“Some proponents of government-funded religion will undoubtedly seek to use this case to attack long-standing no-aid provisions in over three-fourths of state constitutions around the country,” said Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. “But the court went out of its way to clarify that today’s decision addressed only grants for playground resurfacing. The court expressly left questions about other funding schemes for another day.”
Indeed, some observers believe the ruling does not resolve many other church-state questions. Melissa Rogers, a senior fellow at the Brookings Institution, noted how the case specifically says the Trinity Lutheran Church Child Learning Center where the playground was in question admits students of any faith, leaving cases involving religious entities that receive government aid and prefer students of a certain religion for another day.
“Expect further litigation over issues involving other forms of discrimination, religious uses of government aid and cases where there isn’t express discrimination based on religious identity or character,” she said.
The decision ensures that religious institutions will not be automatically disqualified from various competitions for government aid, she said. “But these entities still must compete for the aid in such cases, and many issues in this area are not resolved by this case, including many important issues related to the use of government aid that flows to religious institutions,” she said.
Correction: An earlier version of this included an incorrect first name for Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief. The version has been updated to state the justices who did not join the footnote.