In a decision of historical significance, the U.S. Supreme Court has held that a church is entitled to direct government funding to resurface its playground. It’s the first time the court has used the free exercise clause of the Constitution to require a direct transfer of taxpayers’ money to a church. In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes. Somewhere, James Madison is shaking his head in disbelief.
Trinity Lutheran Church of Columbia, Missouri, had applied for funding from a program run by the state scrap tire program (really!) that provides reimbursements for schools to resurface their playgrounds to a springy rubber surface that’s kinder on kids’ knees when they fall.
The state said no to Trinity Lutheran, citing the Missouri Constitution, which says that the state can’t provide direct funding to a church.
In an opinion for the court Monday, Chief Justice John Roberts wrote that this denial of funding violated the church’s rights under the free exercise clause of the Constitution because it worked as a direct discrimination against the church for being a church. The key to his reasoning is that the “policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”
Such choices have historically been treated as unconstitutional coercion of a religious person under the free exercise clause, Roberts said. His leading example was a 1978 case called McDaniel v. Paty, in which the court struck down a law that prohibited clergy from serving in the Tennessee state constitutional convention. The idea there was indeed that it discriminated against a clergyman to be prohibited from government service simply because of who he was.
On the other side of the ledger was a 2004 decision called Locke v. Davey. The Supreme Court held then that the state of Washington could deny a college scholarship to a student who wanted to study devotional theology.
Roberts attempted to reconcile these two precedents by saying that the state of Washington in the Locke case only restricted the student from doing something religious, namely studying theology. In contrast, the state of Missouri, he claimed, denied funding to the church based on what it was.
This reasoning was enough to bring on board two liberals, Justices Elena Kagan and Stephen Breyer. They were probably also heartened by a footnote to Roberts’s opinion — it, however, did not garner a majority of votes and so isn’t technically part of the court’s opinion.
Footnote 3 reads: “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.”
The strong implication of this footnote is that the justices who joined it aren’t prepared to say that the government can be required to provide direct funding to a church for its worship services or to pay its ministers. Thus, we can intuit that in the minds of the liberals, at least, this decision doesn’t violate a core principle of the establishment clause, namely that the government shouldn’t directly fund religion. In the liberals’ minds, the idea must be that the government is only supporting the nonreligious activity of playground resurfacing.
Justice Neil Gorsuch wrote separately to say that he couldn’t join Footnote 3 because it’s impossible really to distinguish the actor, a church, from the act — the nominally secular playground resurfacing. His point was that when churches do things, they do them religiously. Justice Clarence Thomas also wrote separately and refused to join the footnote.
Logically speaking, Gorsuch is mostly right — which is why the majority opinion is wrong. Money is fungible, and state money that supports playground resurfacing free up funds for paying ministers.
That’s why the distinction between religious and nonreligious functions for churches doesn’t have roots in the history of the establishment clause. And it’s why the framers of the Constitution, especially Madison, who was most committed to religious liberty, would have found the decision incoherent.
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, rightly.
The right way to analyze this case would be to admit that the Missouri Constitution discriminates against churches based on the fact that they are churches — but acknowledge simultaneously that the separation of church and state involves some discrimination against religion — specifically when it comes to getting government money.
The court didn’t do that because it has previously held that under the establishment clause, states may allow neutral benefit programs, like school vouchers, to benefit religious organizations. But it’s classically reached this holding with respect to indirect government programs, not direct state funding.
Footnote 3 means the Supreme Court hasn’t yet held that a state may directly pay for ministers who teach the gospel by, say, creating a funding program for all community organizations’ leaders. But the court very certainly headed in that direction. Breyer and Kagan have, in my view, made a serious, historic mistake in joining this opinion, which weakens the wall of separation between church and state to an unprecedented degree.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”