The Trinity Lutheran Case

By JAMES K. FITZPATRICK

Earlier this spring, we featured a discussion in First Teachers of the case of Trinity Lutheran Church v. Comer, which was scheduled at the time to be decided by the U.S. Supreme Court. The verdict is in. The court issued a 7-2 decision favoring Trinity Lutheran Church on June 26; it should be of great consequence in the debate over taxpayer-assistance to students who attend schools run by religious groups.
Before discussing the court’s decision, let’s review the specifics of the case. Trinity Lutheran Church of Columbia, Mo., operates a day care and preschool. The school applied to a state grant program that helps nonprofit institutions pay for the installation of rubber playground surfaces. The Missouri Department of Natural Resources denied Trinity Lutheran’s application, contending a provision in the Missouri state constitution bars the state from providing funds to religious entities.
Trinity Lutheran sued in federal district court, arguing that its exclusion was a violation of free-exercise and equal-protection rights, and that it was being singled out among nonprofit groups solely because of its religious affiliation.
The district court rejected Trinity Lutheran’s claims, ruling that to do otherwise would raise “anti-establishment concerns.”
Hence the Supreme Court had to decide whether financial assistance from a local government to provide for the installation of a rubber playground surface at a parochial school amounts to the establishment of a religion; or if it is merely giving support to children of that state who happen to attend a parochial school? And more specifically, whether a state or local government has the right to decide against a religious group that seeks such assistance on the basis of concerns about the establishment of religion.
As things stood before Trinity Lutheran took this case to court, local governments had the right to provide taxpayer assistance to parochial schools, in the form of vouchers and financial support for textbooks, for example, if the local government decided to do so. The question Trinity Lutheran was raising was whether local governments could be ordered to provide such support — in this case, a rubber playground surface — even if the local government did not want to provide the aid.
The implications are clear: If the court decided in favor of Trinity Lutheran, it could have a profound impact on the fate of parochial schools all around the country. Schools run by religious groups would be given an opening to demand access to tax dollars allocated to educational purposes in the states where they operate, rather than waiting for local governments to take the initiative in providing such assistance; in effect, to demand government assistance to deal with their financial needs, even in states where the governments were not amenable to such a request.
So what did the Supreme Court decide on June 26? On June 28, in National Review’s online edition, Frederick M. Hess, director of education policy studies at the American Enterprise Institute, and Grant Addison a research assistant at AEI, summarized the 7-2 decision. They called it a “narrow ruling,” but nonetheless a “potent victory” for religious liberty.
They write, “The Court held that Missouri violated the First Amendment’s free-exercise clause when it prohibited a church from receiving public funds for playground improvement ‘solely because of its religious character’; that when the Missouri Department of Natural Resources rejected the church’s application,” it “violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.”
Chief Justice John Roberts authored the majority opinion, which was joined in full by Justices Kennedy, Alito, and Kagan. Those four were joined by Justices Thomas and Gorsuch in all but one crucial footnote, while Justice Breyer issued a concurring opinion. Only Justices Ginsburg and Sotomayor dissented, contending that even what takes place on a religious school’s playground can be seen as an implementation of the school’s religious mission.
The court’s decision, write Hess and Addison, challenges the “provisions of the Blaine Amendment added to many state constitutions in the late 1800s as part of an anti-Catholic crusade intended to stymie the nation’s then-fledgling parochial-school system. Today, some 39 states still have some version of a Blaine amendment in their constitution. These are routinely used by teacher unions and their allies to attack school-choice policies that permit students to use public funds to attend religious schools. In the past two years alone, for example, Blaine amendments have been used to challenge the constitutionality of school-choice programs in Alabama, Georgia, Oklahoma, and Colorado.”
Hess and Addison are quick to note that the decision in the Trinity Lutheran Case did not go so far as to prohibit all Blaine Amendment-type prohibitions against aid to religious schools:
“The Court’s majority shied away from anything so decisive. Instead, in holding that Missouri’s ‘policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,’ the justices chose to rule narrowly. The majority pointed out that the playground was publicly accessible, and not for use solely by students or members of Trinity Lutheran.”
To underscore this point, Hess and Addison point out, “Roberts’ narrow language left unsettled whether states are still free to discriminate against religious schools when it comes to publicly available benefits that aren’t related to playground surfaces, punting on the overall question of whether states can prohibit religious schools from participating in publicly funded school-choice programs.”
But Hess and Addison note, “The Supreme Court may be issuing a more clear-cut determination sooner rather than later. As Justice Gorsuch wrote, ‘The general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else.’ Court watchers had thought there might be five justices, or more, willing to embrace that principle this time around. But this week’s ruling stops at the playground’s edge.”

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Readers are invited to submit comments and questions about this and other educational issues. The e-mail address for First Teachers is fitzpatrijames@sbcglobal.net, and the mailing address is P.O. Box 15, Wallingford, CT 06492.