The U.S. Supreme Court’s 7-2 Decision in Trinity Lutheran v. Comer: Narrow in Scope, Yes; But a Victory for Religious Freedom, Nonetheless
By Ken K. Gourdin
May a government program which provides safety benefits for schools deny those benefits to an applying school because that school is affiliated with a church? In Trinity Lutheran v. Comer, a 7-2 United States Supreme Court decision from which only Justices Ginsburg and Sotomayor dissented, the Court says no. A bedrock principle of U.S. law is that the government cannot “establish” a religion, and it cannot favor one religion over another or religion over nonreligion when meting out its benefits.
For the decision, see the U.S. Supreme Court’s Web site here (this and all other links last accessed June 27, 2017): https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf. For coverage of the decision in Salt Lake City’s Deseret News, see here: http://www.deseretnews.com/article/865683674/Supreme-Court-rules-for-church-in-high-profile-religious-freedom-case.html. For a good introduction to establishment clause law and issues, see here: http://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion.
The Missouri Department of Natural Resources runs a program intended to promote recycling of resources that otherwise would go to waste, while at the same time providing safer surfaces for children to play on than gravel, concrete, or asphalt. The used tires the program recycles are repurposed as safer rubber playground surface. Citing Missouri’s Constitution, the Department denied the application of Missouri Lutheran’s preschool to the program as an impermissible establishment of religion.
While I agree with the minority and with the Department of Natural Resources that state resources should not benefit churches qua churches because such benefits constitute an impermissible establishment of religion, I agree with the majority that the Department cannot deny a benefit it extends to secular schools to religious schools based solely on the fact that the latter are religious (emphasis mine). To decide otherwise in this case is to decide that students at religious schools are less deserving of safety protections than are students at secular schools.
In response to Deseret News coverage of the decision, another commenter wrote, “All churches deserve the right to be able to practice their beliefs without the government unreasonably interfering with them or restricting them because of belief.” I responded:
I think your general principle, that the devout should be able to practice their faith without undue government interference, is correct. However, that’s not what this case was about. The question at bar was whether government could deny safety benefits to religious schools that it offers to secular schools, or whether it has to treat the former the same way it treats the latter when it comes to those benefits. The answer is that both types of institutions must be treated equally in such a circumstance.
Like you, I might have preferred a ruling with broader implications, but half a loaf is better than none.
Another poster at Mormon Dialogue and Discussion attempted to use the Court’s decision as evidence that faiths and their adherents simply want to glut themselves at the public trough (my phrase, admittedly), linking to a story on National Public Radio’s Web site headlined, “Supreme Court rules religious school can use taxpayer funds for playground.” I responded:
That headline takes a shortcut through the facts. The Missouri Department of Natural Resources administers a program to convert used tires into rubber playground surfaces, which are, of course, safer than concrete, asphalt, or gravel. Trinity Lutheran Preschool, which does not discriminate against youngsters or their families even if they do not happen to be Lutheran (and even if they do not happen to be religious), applied to have its playground resurfaced.
Appealing to the Establishment Clause of the Missouri Constitution, the Department denied the Preschool’s application for funds on the grounds that granting the application would constitute an impermissible establishment of religion. While I agree both with the Department and with the minority of the United States Supreme Court that the Establishment Clause forbids favoring religion qua religion and forbids favoring religion over non-religion, what the majority decided is that if the state offers funds for the purely secular purpose of better ensuring children’s safety on school playgrounds, it must ensure a level playing field between state-run schools and faith-run schools when considering both types of schools for receipt of such funds, and it cannot discriminate against the latter solely because they are faith-based. A decision to the contrary would mean that the state may decide that students at faith-based schools are less deserving of safety protections than are students at their secular counterparts.
It should also be noted that this wasn’t a razor-thin, 5-4 decision. It wasn’t even a 6-3 decision. Rather, it was only a 7-2 decision, with only two of the more liberal members of the Court’s liberal wing deciding in favor of the Missouri Department of Natural Resources.
But thanks fer playin’!