Free Exercise on the Playground By Daniel Tagliarina

Free Exercise on the Playground By Daniel Tagliarina

On June 26, as part of the United States Supreme Court’s end-of-term case announcements, the Court announced its ruling in an important First Amendment religion case, Trinity Lutheran Church of Columbia, Inc. v. Comer. As I previously covered on this blog, this case involves the state of Missouri’s denying funds for playground resurfacing to a church-owned daycare because the Missouri constitution prohibits giving state money directly to houses of worship.

As discussed in the previous post, this is a deceptively simple case with much deeper implications for the place of religion within American law and society. Also as predicted, the Court ruled in favor of Trinity Lutheran, with seven justices siding with the church, and two with the state. In this post I will focus on the Court’s decision, explain the breakdown of the justices’ votes on the case, and the logic for the Court’s ruling.

Chief Justice John Roberts wrote the opinion for the Court, joined by Justices Kennedy, Alito, and Kagan, in full. Justices Thomas and Gorsuch joined all of Roberts opinion, with the exception of one brief footnote (more on that later). Justice Breyer concurred in the judgment, which means he agrees with the Court’s ultimate decision, but for different reasons. Justice Sotomayor, joined by Justice Ginsburg, dissented. In the end, seven justices sided with Trinity Lutheran, and two sided with Missouri. As was the case with their recent free speech cases, the Court is more divided than it might first appear.

These divisions involve a split between Roberts (and Kennedy, Alito, and Kagan) on one side and Thomas and Gorsuch on the other. While all six of these justices believe the state of Missouri cannot deny funds to Trinity Lutheran just because it is a church, they disagree on the scope of the ruling. Roberts wants the opinion to be considered narrowly, discussing only benefits related to playground surfaces at this time, while Thomas and Gorsuch explicitly call for a broader understanding of the Court’s ruling, relating it to many other types of state benefits.

A further split arose between Roberts and Breyer regarding the reason the state of Missouri was wrong to deny funds to Trinity Lutheran. Roberts sees this as broadly construed discrimination, whereas Breyer sees this as a minor issue of access to public health and safety government programs. Both agree the state was wrong to discriminate against Trinity Lutheran. Where they disagree is in how to characterize the program in question and the state’s decision to not offer the benefit to Trinity Lutheran. Breyer explains the conflict even more narrowly than Roberts.

The split between the majority and dissent is much more profound. Simply put, Roberts and Sotomayor disagree on how to even understand the case, and Missouri’s denial of Trinity Lutheran. This disagreement comes down to the fact that Roberts and Sotomayor also disagree regarding what parts of the First Amendment were implicated and how. But, to better understand this last set of disagreements, we need to first understand the Court’s logic for its ruling.

Roberts argues that Missouri denied Trinity Lutheran of a generally applicable benefit (funds for playground resurfacing) solely because it is a religious institution. He argues that this puts the church in the position of needing to either forgo participation in a government benefit program or to no longer be a church. For Roberts, this is an unacceptable choice, and one that is foreclosed by the Free Exercise Clause of the First Amendment to the U.S. Constitution. Roberts goes on to argue that Missouri’s goals of not violating the Establishment Clause of the U.S. Constitution does not provide a compelling reason (part of the legal standard Roberts uses in this case) to deny funding to a church for playground resurfacing, and thus rules for Trinity Lutheran.

Where Thomas and Gorsuch depart from Roberts is in regards to a single, short footnote. The footnote reads, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Roberts is trying to alleviate concern about the breadth of this ruling by narrowing the impact to just the specific case.

Thomas and Gorsuch firmly disagree with this approach. In explaining their disagreement, Gorsuch, joined by Thomas, argues they do not join the footnote because they are concerned that others will read the opinion too narrowly. They do not want the precedent to be understood to apply only to playgrounds or issues of children’s safety regarding when religious entities can receive state funds. More than this, Gorsuch argues that the principles in the majority’s opinion extend far beyond playgrounds to all questions of religious discrimination.

Breyer does not join Roberts’ opinion. Breyer, writing separately, and briefly, makes a rather simple, and narrow, determination. Breyer sees this case as about a program aimed at children’s safety, which has no bearing on religion. He likens it to providing police or fire services to churches. Breyer argues that the only reason the church was denied from access to the funds for playground resurfacing was because it was a church, which in this instance is unconstitutional. He specifically says the Court should go no further than this limited finding.

The larger disagreement comes from Sotomayor, joined by Ginsburg, writing in dissent. Sotomayor argues that the majority mischaracterizes the scope and importance of their opinion by making it out to be just about playground surfaces. Sotomayor writes, “This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state.” She goes on to articulate, with great detail, the many ways in which the majority’s opinion goes against prior Court precedent, as well as the very animating principles that led to the creation of the Establishment Clause in the U.S. Constitution.

Sotomayor sees this case as about the essential nature of the separation of church and state, with the majority blending that separation in profoundly new ways. She also takes issue with Roberts’ dismissal of Missouri’s concerns over the Establishment Clause, as well as Roberts’ avoidance of the Court’s own Establishment Clause precedents that would push the Court to siding with Missouri and not Trinity Lutheran. She does not believe the playground resurfacing program is properly understood as a generally applicable benefit, and that this mischaracterization allows the Court to reinterpret the Free Exercise Clause in much broader terms.

As I stated in my initial post covering this case, we see that it does come down to the understanding of the nature of the separation of church and state. While Sotomayor articulates a Madisonian position on church and state (even quoting from Madison), Roberts charts a new path, while Thomas and Gorsuch seek to go even farther in blending church and state through direct financial entanglements.

With the Court’s accepting a case for their next term involving a Denver baker who refused to sell a cake to a same-sex couple for their wedding, Trinity Lutheran and its implications for the Court’s religion clause case law is just beginning. I will address both the separation of church and state implications of Trinity Lutheran as well as what this case means for the Denver baker’s case in future posts.


Daniel Tagliarina is Assistant Professor of Government and Pre-Law Adviser at Utica College.

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