Not every religious-freedom drama involves a murder in the cathedral or the martyrdom of a chancellor—or, for that matter, contraception coverage and the Little Sisters of the Poor. The latest chapter in the story of church-state relations in the United States was about recycled tire scraps, but that chapter is no less important for being prosaic.
Trinity Lutheran Church in Boone County, Missouri, runs a preschool with a playground. The church wanted to replace the pea-gravel under its swings and slides with a softer, safer rubber surface made from old tires. After all, as Chief Justice John Roberts put it, “youngsters…often fall on the playground or tumble from the equipment. And when they do, the gravel can be unforgiving.” It seemed the church was in luck, because Missouri’s Department of Natural Resources has a program that provides reimbursement grants to schools, daycare centers, and various other nonprofits that install these surfaces. The government and the grantees cooperate to increase playground safety and reduce waste in landfills. Everybody wins.
Trinity Lutheran’s application for a reimbursement grant was denied, however, and for one reason: it is a church. Missouri’s constitution has a provision that outlaws spending public money “in aid of any church, sect or denomination of religion.” In the Chief Justice’s words, “No churches need apply.” The question presented to the Justices was whether the First Amendment’s Free Exercise Clause permits this unyielding policy.
Now, most people have heard of “thinking like a lawyer.” Put aside the lawyer jokes for a moment. Essential to this “thinking” is comparing, analogizing, and distinguishing. At the top of the lawyer’s toolkit is the argument that Case A is, or is not, like Case B—and why.
So, which case is the denial of Trinity Lutheran’s application more like? Is it, as Justice Stephen Breyer concluded, like refusing to send a fire truck to a burning church—a clear, religion-based denial of “ordinary” and “general government services” that, clearly, the Constitution does not require? Or, as Justice Sonia Sotomayor warned in her lengthy dissent, is reimbursing the church indistinguishable from Patrick Henry’s 1784 proposal that Virginia financially support “teachers of the Christian Religion,” a plan that prompted James Madison’s famous and fiery denunciation in his “Memorial and Remonstrance Against Religious Assessments”?
The justices agreed, by a 7-2 vote, that Missouri’s decision violated the First Amendment’s free-exercise guarantee and ran afoul of the fundamental principle that laws or policies that discriminate or penalize on the basis of religion are almost always unconstitutional. “The exclusion of Trinity Lutheran from a public benefit,” the Supreme Court declared, “for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” For support, the majority relied on one earlier decision striking down a Tennessee law that categorically disqualified ministers from legislative office and another that invalidated a Florida city’s ordinance that targeted animal slaughter in religious rituals. The dissenters, on the other hand, cast the outcome in terms of nothing less than a historically unprecedented attack on “this country’s longstanding commitment to a separation of church and state.”
All things considered, the justices in the majority had the better of the argument. It is certainly true, as Justice Sotomayor emphasized, that the separation—that is, the differentiation—between religious and political authority safeguards religious and political freedom. Yet this separation is not so strict as to require the blanket exclusion of churches from generally available and entirely secular public benefits, or to rule out cooperation between governments and religious institutions in advancing safety, education, health, and social welfare. Some observers, such as the incoming dean of Berkeley Law, Erwin Chemerinsky, complained that “the noble and essential idea of a wall separating church and state is left in disarray, if not shambles,” but this overreaction reflects a misunderstanding of the idea. Our Constitution wisely protects religious liberty by preventing official interference with strictly religious affairs. It would be unconstitutional for Missouri to pick Trinity Lutheran’s hymns or ordain its pastor, but it is well within our tradition to allow the church, like anyone else, to apply for help with playground safety.
There is, to be sure, a long and honorable tradition of “slippery slope” arguments in First Amendment cases. Madison warned in his “Memorial and Remonstrance” that it is “proper to take alarm at the first experiment on our liberties.” Still, protecting the knees of young children who happen to attend a Lutheran preschool is a long, long way from the Act of Supremacy or, for that matter, the Patrick Henry proposal. Indeed, it is noteworthy that Missouri conceded, and the majority accepted as given, that it would not violate the First Amendment’s Establishment Clause to reimburse Trinity Lutheran for the playground improvements. Twenty years ago, this would have been sharply contested (as it was by the two dissenting Justices). But since then the Supreme Court has moved in the direction of accommodation and cooperation, shifting the emphasis from no-aid separation to government neutrality, and this view is now relatively entrenched.
It is also significant that, to smooth the way to their conclusion, the majority read and narrowly interpreted a 2004 case, called Locke v. Davey, on which Missouri relied. There, the Court had permitted the state of Washington to deny scholarship funds to an otherwise-eligible college student who planned to major in devotional theology and train for the ministry. According to the majority in Locke, this “mild” discrimination, although not constitutionally required, was within the state’s discretion and the constitutionally permissible “play in the joints”—particularly given Americans’ deeply rooted and longstanding worries about using public funds to pay for the religious training of ministers. Although the Trinity Lutheran dissenters insisted that Missouri should enjoy similar leeway, the majority insisted that it is one thing to ban specifically religious uses of public funds but quite another to put Trinity Lutheran to the “choice between being a church and receiving a public benefit.” “Trinity Lutheran,” the Chief Justice emphasized, “is a member of the community too.”