Supreme Court declares churches eligible for some public funds

Richard Wolf | USA TODAY

Show Caption Hide Caption Missouri playground at center of Supreme Court church-state dispute A school playground is at the center of one of the Supreme Court’s biggest case this term. Josh King has the story (@abrodgetoland).

WASHINGTON — The Supreme Court ruled decisively Monday that religious institutions should be eligible to receive public funds for purely secular purposes.

Like, for instance, playgrounds.

The justices ruled 7-2 that Missouri stretched the constitutional separation of church and state too far by declaring a Lutheran church ineligible to receive a competitive state grant for playground resurfacing. The decision could have implications for as many as 39 states with constitutional provisions that block public funds from going to religious organizations.

Chief Justice John Roberts wrote the decision. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Even though the state's denial of funds likely would lead only to "a few extra scraped knees," Roberts said, "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."

Sotomayor took the unusual step of dissenting from the bench, something justices rarely do. The high court, she said, "has never required a state to turn over taxpayer funds to a house of worship."

"Today's decision discounts centuries of history and jeopardizes the government's ability to remain secular," Sotomayor wrote in her 27-page dissent, almost twice the length of Roberts' opinion. She warned that the ruling "leads us ... to a place where separation of church and state is a constitutional slogan, not a constitutional commitment."

The church-state showdown was perhaps the marquee case in a lackluster Supreme Court term dominated by the search for a ninth justice rather than landmark jurisprudence. Finally bolstered by the confirmation of Justice Neil Gorsuch in April, 14 months after the death of Justice Antonin Scalia, the court clearly sided with the church during oral argument.

"It does seem as though ... this is a clear burden on a constitutional right," liberal Justice Elena Kagan said then, in reference to the state's refusal to treat Trinity Lutheran Church equally to other non-profits seeking state grants. The church had met all the neutral criteria for the program.

Gorsuch and Justice Clarence Thomas would have gone further than Roberts, who added a footnote to the court's decision specifying that "we do not address religious uses of funding or other forms of discrimination."

Gorsuch, fast becoming one of the court's most conservative voices and prolific writers, said "The general principles here do not permit discrimination against religious exercise -- whether on the playground or anywhere else."

The case dates back to 2012, when the Columbia, Mo., church applied for a state grant to replace the unforgiving, pea-gravel surface of its child learning center's playground with material made from recycled tires. It placed fifth among 44 applicants, 14 of which were awarded grants, but the church was passed over based on a provision in the state constitution.

The church's lawsuit soon became a cause célèbre among supporters of religious freedom, led by Alliance Defending Freedom, which represented Trinity Lutheran in court. It lost at the federal district and appellate court levels, but the Supreme Court's decision in January 2016 to hear the case was seen as a positive sign. Then Scalia died the following month, prompting the justices to delay hearing the case — presumably because they feared a 4-4 deadlock.

Gorsuch's confirmation wasn't the only late-breaking event. Missouri's new Republican governor, Eric Greitens, reversed the state policy and said churches will be eligible for such grants in the future. That led some justices, as well as liberal interest groups, to wonder if Trinity's challenge was unnecessary.

The church raised two central claims in court papers. It said the exclusion violates the First Amendment’s protection against policies prohibiting the free exercise of religion, as well as the 14th Amendment's promise of equal protection for all. "This is clearly singling out a religious organization with no justification to do so," David Cortman, senior counsel with Alliance Defending Freedom, said during oral argument.

Supporters of the church had warned that a negative ruling could give states justification to deny funds for other services, ranging from police and fire protection to soup kitchens and battered women's shelters. The conservative Institute for Justice said 1.3 million students in school-choice programs could be affected.

Justice Samuel Alito, one of the court's staunchest defenders of religious freedom, cited a series of examples to illustrate that Missouri's exclusion of religious groups would extend to programs that protect against school violence or acts of terrorism.

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