By Andrew L. Seidel

Staff Attorney

Freedom From Religion Foundation

The most important fact in the Supreme Court’s recent decision, Trinity Lutheran v. Comer, didn’t even make it into the majority opinion. The silence of the seven judges who held that Missouri must give taxpayer funds to a church on this point was deafening, especially to anyone looking beyond the superficial media reporting and its inevitable shot of a playground. This crucial fact, passed over in the majority, was highlighted by the dissent upfront.

The omitted fact is simple: The playground at issue was, by the church’s own admission, part of a ministry directed at children and intended to propagate the faith. Here’s how the church explained it:

The Church uses “teaching” to carry out its mission to “make disciples.” The Church does this partly through “the Trinity Church Child Learning Center,” which has the playground that is the subject of the case. The Learning Center serves as “a ministry of the Church and incorporates daily religion and developmentally appropriate activities into . . . [its] program.”

This case is not about playgrounds or skinned knees or keeping children safe. It’s about the government funding a religious ministry that targets children.

In contrast to the majority opinion, which ignored these inconvenient facts, the dissent was refreshingly direct: “The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers.”

The absence of this prominent fact from the majority’s reasoning goes to the common misunderstanding of the case—that it is only about inclusion.

The decision appears to have been guided by emotion or a desire for a certain outcome and not the objective legal reasoning necessary from a high court. Instead of centering in on the government funding a religious ministry, the court focused on what it labeled discrimination, but what is actually an appropriate separation between state and church.

The opinion swept aside hundreds of decisions upholding state-church separation based on reasoning that dates back to the founding. This rationale, which the founders plucked from the Enlightenment and put into practice for the first time, was the culmination millennia of tyranny, in which the people were taxed for the benefit of the church. The founders suspended those ritual levies to “establish more firmly the liberties, the prosperity and the happiness,” of the people, as Madison phrased it when rallying Virginia to oppose a three pence tax that would have supported Christian churches and teachers.

This is the backbone of state-church separation and therefore the central pillar of true religious freedom—it was dismissed by the majority as a mere “policy preference.” By doing so, the majority casts aside what the founders viewed as a central protection of religious freedom, framing that protection as “discrimination.”

The majority did not even consider the idea that funding this church would violate the Establishment Clause (“Congress shall make no law respecting an establishment of religion…”), which it absolutely does. Rather than addressing the question with a clear and emphatic answer, the court focused solely on the Free Exercise Clause (“…or prohibiting the free exercise thereof.”) and argued that discriminating against churches by refusing them public funds violates their Free Exercise rights. How could seven judges ignore an entire provision of the First Amendment? Because “The parties agree that the Establishment Clause of that Amendment” didn’t apply. That’s it. Seven judges threw out a portion of the Constitution because the parties, which agreed on the outcome of the case, said it was OK. Sotomayor and Ginsberg were appropriately incensed at this: “Constitutional questions are decided by this Court, not the parties’ concessions.”

Because the court ignored this hallowed provision and focused on its Free Exercise sibling, it ended up giving the game away. The opinion is so circular that it ties itself in a knot. By centering this claim on the free exercise of religion, the majority admitted that the case is not about the government repairing a playground, but instead is about the one thing the majority tried desperately to ignore: the government funding religious exercise.

If the common understanding of the case is wrong and this case is about not about discriminating against religion, what is it about?

The case is about augmenting the already special treatment churches receive under the separation of state and church. State-church separation gives churches some significant benefits, such as tax exemption. Attached to these benefits are burdens, most importantly, that taxpayers will not fund your religion. Trinity Lutheran changes that. Trinity Lutheran is not about equality, it’s about giving churches the benefits of state-church separation and none of the burdens.

The decision is about giving churches special treatment. Now, churches get to have their cake—which the American taxpayers buy—and eat it too.

This decision is a body blow to state-church separation and was a sad day for both the First Amendment and the Supreme Court, which turned its back on part of the First Amendment.

Most alarmingly, this decision opens the spigot of taxpayer funds. Churches are going to be clamoring for a position at the taxpayers’ trough. But know this: FFRF is going to be fighting demands that taxpayers subsidize religion. We will do everything we can to minimize the fallout from this decision, and to defend the wall of separation. Now more than ever, we need your help. Please consider supporting our fight by joining FFRF or donating to our legal fund.