The court waded in, alas. And the majority opinion, by Chief Justice John Roberts, and the dissent, by Justice Sonia Sotomayor, got the issue wrong.
In Trinity Lutheran, a church challenged the state of Missouri’s refusal to fund safety improvements at its daycare playground. In April 2017, however, the newly elected governor of Missouri ordered the state to grant the funding and not to enforce its no-churches funding rule. The church won what it wanted because the state decided to give it—this being, for any judges unclear on the concept, what is wistfully called “the political process” courts are supposed to support, not supplant.
Even after the fight ended, however, the Supreme Court insisted on deciding the no-longer-existent dispute. The resulting opinions illustrate the old adage that “if you don’t know where you’re going, when you get there, you’ll be lost.”
As someone who has spent nearly two decades studying church-state cases, I am frankly torn about this one. Denying playground surfacing to children based on the formalities of their daycare seems harsh; but constitutional micromanagement of state church-state relations has its own hazards.
To be clear: The rejection was not because the daycare was religious. Had it been operated by a separate religious non-profit with its own board (as it originally was) rather than directly being controlled by the church itself, it would almost certainly have been ruled eligible. (In 2007, the Missouri Supreme Court held that St. Louis University—founded by the Society of Jesus, with a Jesuit president, a Jesuit philosophy, and guaranteed Jesuit membership on its board—was not ineligible under the Missouri constitution: “Mere affiliation with a religion does not indicate that a higher education institution is ‘controlled by a religious creed’ for purposes of Missouri’s establishment clause,” the court said.)
All the parties agreed (though some others disagreed) that actually funding the playground would not violate the Constitution’s prohibition on “an establishment of religion.” The question was whether not funding the playground violated the church’s right to “the free exercise” of religion.
The chief justice painted a dramatic picture of the stakes. In his majority opinion, he compared the church’s plight to that of a 19th-century Marylander barred from public office because he was a Jew: “If, on account of my religious faith, I am subjected to disqualifications from which others are free, [this is] a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”
Roberts did tersely admit that “Missouri’s Department of Natural Resources has not subjected anyone to chains or torture on account of religion.” But, he said, the grant rejection constitutes something similar—discrimination against the church because of its “religious identity.” Because it is such deadly discrimination, he wrote, a denial of general funding grants to a church requires “strict scrutiny”—the constitutional equivalent of a death sentence.
Since the time of the First Congress, the prohibition on “establishment” has been conceived of as preventing churches—or “houses of worship”—from receiving exactly that: direct payments of tax funds. For more than 200 years, states have tried to avoid establishment problems by drawing a strict line between state funds and church treasuries. It’s hard to find “chains and torture” in that history.