As someone who has spent nearly two decades studying church-state cases, I am frankly torn about this one. Denying playground surfacing to children based on the formalities of their daycare seems harsh; but constitutional micromanagement of state church-state relations has its own hazards.

To be clear: The rejection was not because the daycare was religious. Had it been operated by a separate religious non-profit with its own board (as it originally was) rather than directly being controlled by the church itself, it would almost certainly have been ruled eligible. (In 2007, the Missouri Supreme Court held that St. Louis University—founded by the Society of Jesus, with a Jesuit president, a Jesuit philosophy, and guaranteed Jesuit membership on its board—was not ineligible under the Missouri constitution: “Mere affiliation with a religion does not indicate that a higher education institution is ‘controlled by a religious creed’ for purposes of Missouri's establishment clause,” the court said.)

But because the funds would flow directly into a church treasury and be spent by church officials, the grant would violate a widely held principle (as many as 38 states have similar language in their constitutions) against direct funding of churches and similar “houses of worship.”

All the parties agreed (though some others disagreed) that actually funding the playground would not violate the Constitution’s prohibition on “an establishment of religion.” The question was whether not funding the playground violated the church’s right to “the free exercise” of religion.

The chief justice painted a dramatic picture of the stakes. In his majority opinion, he compared the church’s plight to that of a 19th-century Marylander barred from public office because he was a Jew: “If, on account of my religious faith, I am subjected to disqualifications from which others are free, [this is] a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”

Roberts did tersely admit that “Missouri’s Department of Natural Resources has not subjected anyone to chains or torture on account of religion.” But, he said, the grant rejection constitutes something similar—discrimination against the church because of its “religious identity.” Because it is such deadly discrimination, he wrote, a denial of general funding grants to a church requires “strict scrutiny”—the constitutional equivalent of a death sentence.

All very well, except the entire factual predicate is spurious. The grant denial is not because the church is “religious”—religious-based non-profits, as noted above, are eligible to apply for the grants. It is because Trinity Lutheran is a “church”—a particular kind of organizational status that brings with it an enormous number of advantages (Churches, for example, are permitted to discriminate in hiring and promotion on the basis of religion; churches do not pay taxes that other organizations do).