Lutheran Case Hangs By A Footnote

If it weren’t for Footnote 3, Monday’s Supreme Court ruling in support of public funding for improvements to a church playground would have been a clear win for school voucher advocates.

But the rare 27-word addendum crafted by Chief Justice John Roberts in the major church-state case muddies the legal waters, leaving day school advocates celebrating what they see as a “historic” ruling and more liberal Jews focusing on what they see as a narrow decision that likely won’t have ripple effects in other religious liberty cases.

The case, Trinity Lutheran Church of Columbia, Inc. v. Comer, centered on whether the church’s preschool’s outdoor play area qualifies for a state program that uses recycled tires to resurface playgrounds. Currently the church’s playground is surfaced with pebbles. State officials rejected Trinity’s application in 2012 because Missouri’s constitution, like 38 other states, has a provision, called a “Blaine Amendment,” prohibiting religious institutions from getting public funds.

On Monday, the court’s 7-to-2 ruling found that the state’s decision violated the First Amendment’s free exercise of religion clause by excluding Trinity from a grant program solely on the basis that it was a religious organization.

Nathan Diament, executive director of the Advocacy Center of The Orthodox Union, which supports school vouchers, called the ruling “historic” because, he said in a news release, it “makes it clear that a state may not exclude an institution from a neutral government benefit program because of the institution’s religious status.”

But, say some legal observers, the decision doesn’t bode well when it comes to other religious liberty cases, such as the upcoming Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which a baker refused to make a wedding cake for a gay couple, citing religious beliefs.

Diament said the Trinity Lutheran playground decision supports the “broad principle” that states cannot exclude religious institutions from funding used for “anything involving health safety and security.”

“That’s a lot of things,” he said. “That’s security funding, funds for school nurses, vaccinations, all kinds of things.”

Marc Stern, an expert on church-state law who serves as general counsel for the AJC, agrees. Stern co-authored a friend-of-the-court brief on the case on behalf of AJC, which sided with Trinity Lutheran, but on narrower grounds than those the church was arguing. He wouldn’t go so far as to say the case is, at this point, historic — there have been similar cases before and the opinion was written on very narrow grounds — but he agrees it is important.

“It is significant in that it says that a limitless reading of the non-aid rule [to religious organizations] is unconstitutional. … [F]rom time to time you’ll hear city agencies question whether a Jewish community could get money for [providing non-religious] social services. That question is sort of put to bed.” — Marc Stern, church-state law expert

“It is significant in that it says that a limitless reading of the non-aid rule [to religious organizations] is unconstitutional,” Stern said. For example, he said, “from time to time you’ll hear city agencies question whether a Jewish community could get money for [providing non-religious] social services. That question is sort of put to bed.”

Indeed, church-state separation supporters take heart in the fact that Roberts’ Footnote 3 specifically divorces the Trinity decision from school voucher questions.

“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,” the footnote says. That question will be taken up in the fall in several state-level school voucher cases, including Colorado’s Taxpayers for Public Education v. Douglas County School District, which the Supreme Court sent back to the lower court for re-evaluation in light of the Trinity Lutheran decision.

Despite the notable footnote, Diament and other day school funding advocates, such as Agudath Israel’s Rabbi Abba Cohen, vice president for federal affairs for the charedi umbrella group, say that the decision bodes positively for vouchers for two reasons: First, the decision makes clear that there are some limits to church-state separation. Secondly, while Footnote 3 makes a distinction between funding for religious and secular uses, both Justices Neil M. Gorsuch and Clarence Thomas, in a joint opinion, say explicitly that they don’t agree with it. They fear that some might “mistakenly” read the footnote “to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health … are governed by the legal rules recounted in and faithfully applied by the Court’s opinion.”

In a separate opinion, Justice Stephen G. Breyer wrote that the First Amendment is obviously not intended to cut church schools off from “general government services [such as] ordinary police and fire protection,” but that clarifying what exactly can be funded by public funds should be “left for another day.”

In an essay on the scotusblog.com, Diament writes: “Reading Footnote 3 together with the concurrences of Justices Breyer, Gorsuch and Thomas, we have seven justices who clearly support state funds flowing to houses of worship and other religious entities on the basis of neutral criteria for security, health, safety and similar needs.”

In a statement sent out by Agudath Israel, Rabbi Cohen calls the decision “one of the most significant rulings on religious liberty in many generations”; it will, he said, “have broad effect across our nation, particularly in states that have Blaine Amendments, and will find widespread application to many areas, including school choice and security grant programs.”

But the decision could work against Orthodox interests in cases involving other religious liberty questions, which come up a lot in synagogue zoning and eruv cases.

Marci Hamilton, an expert on church-state law and founder of the advocacy organization CHILD USA, calls the decision “a double-edged sword.”

“On the one hand, it opens the door to more state-based funding,” she said. “But on the other … [w]hat this does is treat religion as just another category of an entity that could have a playground for children. And so its identity becomes subsumed in this equality principle.

“Equality is not the ultimate goal of the religious advocates; it’s special treatment that they’re looking for. If the court is consistent with treating the religious entities as every other entity is treated, then I would imagine it would … in the [Colorado gay-marriage discrimination case] Cakeshop case … come out against the cake shop.” — Marci Hamilton, , church-state law expert

“Equality is not the ultimate goal of the religious advocates; it’s special treatment that they’re looking for,” she continued. “If the court is consistent with treating the religious entities as every other entity is treated, then I would imagine it would stick with its reasoning … in the [Colorado] Cakeshop case and come out against the cake shop because they are in violation of the neutral nondiscrimination law.”

But the Anti-Defamation League, which filed a brief supporting the state that was cosigned by Central Conference of American Rabbis, Hadassah, the Women’s Zionist Foundation of America, Interfaith Alliance Foundation, Jewish Social Policy Action Network, Union for Reform Judaism, Women of Reform Judaism and Americans United for Separation of Church and State, sees the decision more as clouds than silver linings.

“Maintaining the separation between church and state has been a hallmark of American democracy since our country was founded,” ADL CEO Jonathan A. Greenblatt said in a news release. “Although the decision is narrowly focused, the U.S. Supreme Court appears to have taken a disturbing step back from this commitment today. …

“Allowing churches and other religious groups to compete for direct government funds is bad for religion,” he added. “States should not be in the religiously divisive business of choosing who, from among diverse houses of worship, should receive public dollars.”