The Supreme Court has wrongly invalidated laws, just as it has upheld unjust ones.
The Supreme Court’s decision in Trinity Lutheran Church v. Comer is a resounding victory for religious liberty. Seven of nine Supreme Court Justices held that Missouri may not offer a benefit to all nonprofit organizations except religious ones.
The case involved a state program that provided safe playground surfaces made from recycled tires. Forty-four nonprofits applied for the program, Trinity Lutheran Church Preschool Learning Center’s application was ranked fifth, 14 grants were awarded—but Trinity Lutheran’s application was rejected. It was denied solely because of Missouri’s constitutional provision stating that:
no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
The constitutions of 37 other U.S. states contain similar provisions, and they are often associated with the amendment to the U.S. Constitution proposed by Representative James Blaine (R-Maine) in 1875, which would have prevented, among other things, public funding of schools “under the control of any religious sect.” The amendment failed, but many states soon altered their constitutions along these lines. As discussed in a previous post, proponents of these amendments were often motivated by anti-Catholic animus. Some scholars have denied that Missouri’s constitutional provision is a Blaine amendment, but Justice Sotomayor’s dissent recognizes that it is at least closely related to them (see pages 18-19 of her opinion).
Chief Justice John Roberts, writing for the majority, contended that the “Free Exercise Clause ‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status’.” In this case, Missouri clearly discriminated against an entity simply because it was religious, and it made no effort to explain why it had a compelling interest in doing so. This sort of discrimination against an organization “simply because it is a church, is odious to our Constitution” and so it “cannot stand,” Roberts wrote.
He was joined by Justices Kennedy, Alito, and Kagan (!). Justices Thomas and Gorsuch joined the majority opinion except for its footnote three, which stated that:
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 majority opinion emphasizes that while Missouri’s program provided a public benefit—protecting children from skinned knees—it did not subsidize religious activity per se. This difference allowed Roberts to distinguish this decision from that of the 2014 case of Locke v. Davey, which upheld a program in Washington state that subsidized students pursuing any college degree except those that are “devotional in nature or designed to induce religious faith.”
It was Justice Gorsuch who wrote the concurrence expressing his and Justice Thomas’ skepticism about the Roberts distinction between “laws that discriminate on the basis of religious status and religious use” (emphasis in original). The concurrence pointed out, as did Sotomayor in her dissent, that it is entirely reasonable to view the playground as being inspired by, and perhaps an extension of, the church’s ministry. Gorsuch and Thomas contended that even if that is so, it should make no difference with respect to the First Amendment. If Missouri offers a generally available benefit, it cannot discriminate against religious entities unless it has a compelling reason to do so.
Justice Breyer, too, concurred with the majority’s judgement. But in an ironic twist, he did so because he thought it was consistent with the holding in Everson v. Board of Education (1947), the case that many would like to think requires the strict separation of church and state (and the case that, upon its 70th anniversary this year, has occasioned the present series of posts).
Justices Sotomayor and Ginsburg dissented, and, apropos for this series, they did so on originalist grounds. Sotomayor explained that:
This Court has constantly looked to history for guidance when applying the Constitution’s Religion Clauses. Those Clauses guard against a return to the past, and so that past properly informs their meaning.
To her credit, Justice Sotomayor recognizes that the men who drafted and ratified the religion clauses were influenced by more than two Founders (Jefferson and Madison) and one state (Virginia). She referenced a range of documents purporting to show that “those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship.”
Justice Sotomayor is not completely wrong, as I have elsewhere argued. But she is selective in her use of sources. For instance, she quotes the Baptist minister John Leland from The Sacred Rights of Conscience, a work I co-edited with Daniel Dreisbach in 2009. The Leland quote doesn’t really advance her case, but what struck me was that she (or more likely her clerks) ignored texts in the same volume showing that Congress voted to approve: congressional and military chaplains (who were, in case there is any doubt, ministers); a grant of land to the “Society of the United Brethren for Propagating the Gospel”; and money to support a Roman Catholic minister to the Kaskaskia Indians.
Nevertheless, Sotomayor is correct that Americans in the Founding era were coming to question the wisdom of governmental support for and control of churches. And for good reason! This is not to say that the Founders disallowed or disapproved of government funds going to churches or religious organizations for education, social services, or other programs that benefit the general public. Indeed, such support became increasingly common throughout the 19th century and into the 20th.
This funding was largely uncontroversial, except when it went to Roman Catholic organizations. Hence the state Blaine amendments.
The Chief Justice’s footnote leaves some ambiguity as to what the impact of Trinity Lutheran v. Comer will be. But this much is clear: If a state makes a benefit generally available, it cannot discriminate against churches or other religious organizations. May the Blaine amendments rest in peace.
 The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding, edited by Daniel L. Dreisbach and Mark David Hall (Indianapolis: Liberty Fund, 2009), pages 472-476.