Don’t tread on us

The U.S. Supreme Court issued a major victory for churches on Monday, the busy final day of its term, ruling 7-2 that a Missouri policy that denied state aid to churches “expressly discriminates.” This follows a consistent record of pro-free exercise rulings from the Roberts court.

Chief Justice Roberts penned the opinion in Trinity Lutheran Church of Columbia v. Comer, and six justices joined him: Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Samuel Alito, Elena Kagan, and the newly minted Neil Gorsuch. Justice Sonia Sotomayor penned a red-hot dissent, which Justice Ruth Bader Ginsburg joined, saying the opinion “jeopardizes the government’s ability to remain secular.”

The substantial ruling came from a dispute over scrap tires. Trinity Lutheran’s day care had applied for a state program that distributes recycled scrap tires for playground surfaces. The state Department of Natural Resources rejected the application because of the state policy banning aid to religious institutions.

“The department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution,” Roberts wrote for the court. “Of course, Trinity Lutheran is free to continue operating as a church … but that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the center is otherwise fully qualified.”

Sotomayor was correct that it was a major ruling, though several of the justices in the majority disagreed about how major it was. Breyer wrote in his concurrence that “public benefits come in many shapes and sizes,” and he would not necessarily extend the ruling’s conclusion to all public benefits. A footnote—that Roberts, Thomas, and Gorsuch did not join—said the discrimination the court identified only applied “to playground resurfacing.” But the opinion still set a major precedent in favor of religious groups having access to public benefits.

The Trinity Lutheran case was only the third in which Gorsuch was sitting as a justice. The ruling was one of several indicators on Monday of his judicial philosophy. In a concurrence Gorsuch wrote, with Thomas joining, about his concern that the court was drawing a line between allowing state aid for groups with religious “status,” but not for religious “use.” The court’s ruling Monday affirmed its previous ruling in Locke v. Davey prohibiting public funding of theological training (religious “use”), but narrowed Locke by saying that states couldn’t discriminate based on religious “status.”

“Is it a religious group that built the playground?” Gorsuch asked. “Or did a group build the playground so it might be used to advance a religious mission? … 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.”

Sotomayor, vigorously arguing against the court’s ruling, made essentially the same point: “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 showed how seriously she took this ruling by reading her dissent from the bench of the Supreme Court, a rarity.

The resolution of this case was a long time coming. The Supreme Court first took up Trinity Lutheran’s case in January 2016, just before Justice Antonin Scalia unexpectedly died. With only eight justices on the bench, the court waited a year to schedule the arguments for such a major issue. Just after the Senate confirmed Justice Neil Gorsuch, the court finally heard the church’s case.

In the meantime, Missouri elected a Republican governor who on the eve of the high court arguments in April announced that the state was reversing its policy and allowing churches to apply for the state program. Thatthrew a wrench in the case, potentially mooting it, but the court accepted the church’s “voluntary cessation” argument—that nothing would prevent this governor or a future one from reinstating the policy as soon as the case was mooted. The court went ahead to make a major ruling in this otherwise sleepy term.

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion,” Roberts concluded his ruling. “The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”