The Supreme Court ended its term Monday with a major First Amendment decision, ruling that efforts at separating church and state go too far when they deny religious institutions access to government grants meant for a secular purpose.
In siding with a Missouri church that had been denied money to resurface its playground, the court ruled 7-2 that excluding churches from state programs for which other charitable groups are eligible is a violation of the Constitution’s protection of the free exercise of religion.
“The consequence is, in all likelihood, a few extra scraped knees,” wrote Chief Justice John G. Roberts Jr. “But 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 all the same, and cannot stand.”
Trinity Lutheran Church in Columbia, Mo., brought the case because it was excluded from a state program that reimburses the cost of rubberizing the surface of playgrounds. The church scored high in the grant process, but Missouri’s state constitution, like those in about three dozen states, forbade government from spending public money on “any church, sect, or denomination of religion.”
The decision came as the court completed work on the cases it had accepted for the term and scheduled a couple for fresh arguments in front of a full court including Justice Neil M. Gorsuch, who joined the court in April.
But the day was also notable for what did not happen. All eyes were on Justice Anthony M. Kennedy, the court’s pivotal member, who was reported to be thinking about retirement after nearly 30 years on the court. The speculation about Kennedy, who is almost always the deciding vote in divisive cases on the nation’s biggest controversies, has dominated the end of a relatively quiet Supreme Court term.
The White House was watching closely because Kennedy’s exit would give President Trump the chance to solidify a more conservative Supreme Court. Of course, Kennedy could announce his intentions at any time, and the only words he uttered from the bench Monday were from an opinion he delivered.
The court’s ruling in Trinity Lutheran v. Comer was a narrow one, but experts said it is sure to bring more challenges from religious groups in other areas.
“School choice is on a great footing, a better footing today than it was yesterday,” said Michael Bindas, a senior attorney with the Institute for Justice, which advocates for private-school voucher programs. “The court’s reasoning sends a strong signal that just as the court would not tolerate the exclusion of a church from a playground resurfacing program, it will not tolerate the exclusion of a child from a school-choice program solely because they want to use a scholarship at a religious school.”
Others disputed that summary. But groups supportive of the separation of church and state were disappointed by the ruling, and it drew a long and passionate dissent from Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg. Sotomayor signaled the importance she places on the decision by reading part of her dissent from the bench.
The ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” Sotomayor wrote. She added, “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.”
Roberts noted that the Supreme Court in its 2004 case Locke v. Davey upheld the state of Washington’s decision not to fund students seeking degrees in devotional theology as part of a state scholarship program. But Roberts said Washington did not want to force students to give up their religious views; for instance, the scholarships could be used at religious schools.
“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit,” Roberts wrote. “The rule is simple: No churches need apply.”
Roberts was joined in his full opinion by Justices Anthony M. Kennedy, Samuel A. Alito Jr. and Elena Kagan. Justices Clarence Thomas and Gorsuch joined all but a footnote in which Roberts appeared to soften the impact of the decision.
“This case involves express discrimination based on religious identity with respect to playground resurfacing,” Roberts wrote. “We do not address religious uses of funding or other forms of discrimination.”
Gorsuch said that seemed unnecessarily narrow. “The general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else,” he said.
Justice Stephen G. Breyer agreed with the outcome of the case but thought the majority decided too much.
Groups that worry about the entanglement of government and church said they were disappointed the court did not respect Missouri’s strict constitutional prohibition.
“The court gave insufficient deference to Missouri’s constitutional no-aid clause, which is similar to those in 38 other state constitutions,” said Jonathan A. Greenblatt, chief executive of the Anti-Defamation League. “These constitutional provisions serve significant government interests — leaving the support of churches to church members, while also protecting houses of worship against discrimination and interference from the government.”
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.
The state’s new attorney general agreed, and a private lawyer was appointed by the state to defend its old policy.
The case has been pending for a long time. The court agreed to hear it in January 2016, just before the death of Justice Antonin Scalia.