If the earlier grant for cert to Masterpiece Cakeshop offers hope for religious-liberty advocates, then the decision on Trinity Lutheran should have them in ecstasy. In a surprising 7-2 ruling, the Supreme Court reversed a lower court and ruled that the state of Missouri has to allow religious schools to benefit from a schoolyard-safety program. Under current state law, Missouri argued that religious schools had no access to state funds for any purpose, an argument demolished by both the controlling opinion and two others in support of it.
Chief Justice John Roberts authored the controlling opinion, and noted that the court had ruled similarly in the past on such issues. Roberts rejected the state argument that the school was seeking a subsidy, and noted that the purpose of its participation wasn’t to promote religion but to fulfill the mission of the program to improve child safety:
Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” Sherbert, 374 U. S., at 405. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. ….
In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.
Roberts argued in a footnote that the case was straightforward enough on those merits to avoid having to rely on an equal-protection argument. Justice Neil Gorsuch was not so sure about that, nor about the line between religious status and religious use:
First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante, at 12. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him). See Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 296 (1990) (Scalia, J., dissenting). Often enough the same facts can be described both ways.
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877 (1990). And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993). Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. See Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 716 (1981); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947). I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way. …
Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 25 (2004) (Rehnquist, C. J., concurring in judgment). And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.
Stephen Breyer wrote his own concurrence, but emphasized the distinction made by Roberts:
The Court stated in Everson that “cutting off church schools from” such “general government services as ordinary police and fire protection . . . is obviously not the purpose of the First Amendment.” 330 U. S., at 17–18. Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference. The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith. And it is that last-mentioned fact that calls the Free Exercise Clause into play. We need not go further. Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.
Justices Sotomayor and Ginsburg wrote a lengthy dissent, summarized mostly in its conclusion, arguing that this ruling actually damages religious liberty:
The Religion Clauses of the First Amendment contain a promise from our government and a backstop that disables our government from breaking it. The Free Exercise Clause extends the promise. We each retain our inalienable right to “the free exercise” of religion, to choose for ourselves whether to believe and how to worship. And the Establishment Clause erects the backstop. Government cannot, through the enactment of a “law respecting an establishment of religion,” start us down the path to the past, when this right was routinely abridged.
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. 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. I dissent.
The most surprising part of that dissent was how few justices signed up for it. Breyer and Kagan ended up in concurrence with the conservatives, at least to the extent specific to Trinity Lutheran. Alliance Defending Freedom, which represented the school, celebrated after the decision:
“The government should treat children’s safety at religious schools the same as it does at nonreligious schools. The Supreme Court’s decision today affirms that commonsense principle and the larger truth that government isn’t being neutral when it treats religious organizations worse than everyone else. Equal treatment of a religious organization in a program that provides only secular benefits, like a partial reimbursement grant for playground surfacing, isn’t a government endorsement of religion. As the Supreme Court rightly found, unequal treatment that singles out a preschool for exclusion from such a program simply because a church runs the school is clearly unconstitutional.”
The question now will be whether that victory for religious liberty will extend into the next term with Masterpiece Cakeshop and Arlene’s Flowers.