Abandoning a longstanding constitutional protection for the separation of church and state, the Supreme Court ruled earlier this week that a church must be allowed to participate in a state program that provides direct taxpayer grants to improve school playground surfaces. The decision was very troubling. As we argued in our friend-of-the-court brief in the case, Trinity Lutheran v. Comer, the government should not be funneling public funds directly to churches or other houses of worship, for any reason. Period.
Those who support government funding of religion are rejoicing over the ruling, eager to secure public dollars for a variety of religious purposes, including school vouchers that are barred under many state constitutions. But lawmakers shouldn’t take out their checkbooks just yet. As troubling as Monday’s decision was for the separation of church and state, it was based on explicitly narrow grounds. The court went out of its way to note that the ruling applies only to “express discrimination based on religious identity with respect to playground resurfacing,” which the court appeared to view as a secular use of funds.
The decision did not address — and thus left in place — other restrictions on public funding of religion, including what the court characterized as “religious uses of funding,” which have long been prohibited by the Establishment Clause of the First Amendment. The court also affirmed that it is still proper for states to take into account the proposed use for government funds when awarding them. A state may still, for instance, enforce its state constitutional provisions protecting the separation of church and state by declining to provide taxpayer dollars for the training of ministers, even as part of a broader grant program.
In a concurring opinion, Justice Neil Gorsuch, joined by Justice Clarence Thomas, argued that court should have gone further by holding that the First Amendment requires houses of worship and other religious institutions to be eligible for government funding programs regardless of whether the funds will be put to “religious uses.” The other seven justices, however, did not subscribe to this view, which would overturn longstanding precedent on this issue and completely upend — even more so than Monday’s decision — the First Amendment’s delicate balance between safeguarding the free exercise of religion while also protecting against its establishment.
Yesterday, in light of the Trinity Lutheran decision, the Supreme Court also vacated and remanded several state supreme court decisions pertaining to government funding of religious institutions, including a 2015 victory by the ACLU and allies against a Colorado school voucher program. Although the Supreme Court sent those cases back to the state courts for further consideration, it routinely takes this approach when it issues an opinion addressing an issue that relates to existing litigation. It gives the lower courts the first opportunity to determine what effect, if any, recent rulings may have on the case. But it doesn’t affect the limited nature of the Trinity Lutheran decision itself. The Colorado Constitution, for example, prohibits public funds from being used for religious purposes, directly or indirectly. School vouchers, which will fund religious education and indoctrination, as well as religious discrimination against students, plainly violate that provision. Nothing in the Trinity Lutheran decision requires the Colorado courts to abandon the state’s long history of protecting against the use of taxpayer money for such purposes.
While Monday’s narrow ruling does not provide a broad authorization for government funding of religion, it is nevertheless a stark warning for those of us who value the Constitution’s abiding protection for the separation of church and state. As Justice Sonia Sotomayor wisely cautioned in her forceful dissent, whatever one thinks of the outcome in Trinity Lutheran, the real concern is “what it might enable tomorrow.” Never before has the court held that the government may provide direct cash aid to a church. If the court is willing to cross that constitutional line here, it does not bode well for upholding other Establishment Clause principles in the future.