'Easy' Church-State Case May Make Bad Law

      Hard cases make bad law, it is said. For the Supreme Court, the dispute over government aid to resurface a church school playground in Missouri turned out to be a somewhat easy case. The question now is whether the surprisingly easy case will make bad law by limiting the power of states to enforce constitutional provisions prohibiting government assistance to private schools, whether secular or sectarian.
      The 7-2 decision in Trinity Lutheran Church v. Comer [June 26] found that Missouri had violated the Free Exercise Clause by rejecting the church's application for a government grant to resurface its playground in the interest of child safety with a rubberized material made of recycled automobile tires.
      The court had expected the case to be difficult. Oral arguments had been postponed for more than a year after Justice Antonin Scalia's death in February 2016, apparently because of fears of an inconclusive 4-4 split from the shorthanded court.
      With Justice Neil Gorsuch confirmed for the ninth seat, the justices heard arguments on April 19. From the justices' questions, the solidified conservative bloc appeared likely to pick up the votes of liberal justices Stephen G. Breyer and Elena Kagan in a ruling for the church. Only liberal justices Ruth Bader Ginsburg and Sonia Sotomayor seemed likely to stake out a strict church-state separationist position in dissent.
      The court followed the day after the decision by sending somewhat analogous cases back to the Colorado and New Mexico supreme courts to reconsider their decisions blocking state aid to non-public schools. Writing for the majority in Trinity Lutheran, Chief Justice John G. Roberts Jr. had given little weight to the Missouri constitution's provision that prohibits any funds "from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion . . . ."
      Roberts dismissed the state's interest in enforcing that provision, in part to steer clear of breaching the U.S. Constitution's prohibition against establishment of religion, as a mere "policy preference." Missouri's constitutional prohibition against aid to churches dates from its admission as a state in 1820. The constitutional provisions in Colorado and New Mexico are equally unambiguous in prohibiting aid to private schools and, like Missouri's, date from the states' admissions to the Union.
      In his opinion, Roberts described Missouri's prohibition on government aid to churches or religious sects or denominations as "odious" discrimination and even likened it to "persecution." Apart from the slightly overheated rhetoric, Roberts dropped a delphic footnote seemingly aimed at narrowing the scope of the decision.
      The case "involves express discrimination based on religious identity with respect to playground resurfacing," footnote 3 specifies. "We do not address religious uses of funding or other forms of discrimination." That caveat seems to embody the judicial restraint so revered by legal conservatives, but Gorsuch and his joined-at-the-hip conservative colleague Clarence Thomas both rejected the footnote and its implied minimalism.
      Gorsuch acknowledged the footnote — "of course"— as "entirely correct" but warned against reading the decision too narrowly. The decision, he said, would not permit "discrimination against religious exercise — whether on the playground or anywhere else." In his opinion, Thomas called for overturning the recent, 7-2 precedent in Locke v. Davey (2004) that allows states to deny scholarships for students training for the ministry.
      In her dissenting opinion, Sotomayor accused the majority of a radical break with legal precedent and historical practice dating back to the Framers. The ruling, she emphasized, marked the first decision to hold that the Constitution requires the government to provide public funds directly to a church. The decision, she went on, "weakens the country's longstanding commitment to a separation of church and state beneficial to both."
      Sotomayor rejected the majority's depiction of the case as a "simple" one that concerned nothing more than playground safety. Trinity's Learning Center had a religious mission and used the playground to "practice and spread" religious views, she said. Without specifically referencing Roberts's footnote 3, she rejected its logic. "The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar,” she wrote.
      In the oral argument, Justice Samuel A. Alito Jr. scored points for the conservative bloc by asking whether, under Missouri's constitution, a church could be denied government funds for such secular purposes as earthquake safety or counterterrorism security. The lawyer representing the state stressed that Missouri's constitution —  as construed before the state's shift of position in the playground case itself —  would have barred funds for a church but not for a school as long as it was not operated directly by a church.
      For Alito and other conservative justices, Missouri's constitution was tainted by the anti-Catholic prejudice that helped drive the later adoption of similar amendments in, according to Sotomayor's count, 38 other states. All those provisions may now be living on borrowed time even when written as broadly applicable prohibitions on aid to non-public schools of any stripe. The Colorado and New Mexico supreme courts now have to try to square their states' policies with a Supreme Court majority that sees its mission as lowering the wall that has helped preserve religious freedom in the United States by keeping church and state apart.