In a 7-2 ruling issued this morning in Trinity Lutheran Church v. Comer, the United States Supreme Court found that the state of Missouri must allow a church to compete for a generally applicable playground resurfacing funding program. Although Chief Justice John Roberts included a brief footnote presumably limiting the scope of the decision to playground resurfacing, this decision has the potential for rewriting Establishment Clause jurisprudence in the United States.

This decision overturns over 200 years of legal precedent by requiring a state to provide public funding directly to a religious organization. As Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsberg, wrote in her dissent, "This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state."   She continued, stating that the decision.

The classical expression of the Establishment Clause was to prohibit the government from requiring citizens to support religion with tax money.  Sotomayor writes, "Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily."

In 1990, the Supreme Court rewrote Free Exercise Clause jurisprudence in Employment Division Smith finding that states could impose themselves on the free exercise of religion so long as they did not intend to single out the free exercise of religion. Trinity Lutheran will have a similar destabilizing effect on Establishment Clause jurisprudence by requiring states to fund religion in certain circumstances.

The effect of money flowing into churches is not limited to the financial benefit of the churches, but also for the state regulations to flow into churches.  With the anticipated demise of the Johnson Amendment, which prohibited churches from engaging in political campaigning for particular candidates, there may soon be allegations that certain churches get preferential treatment over others as they clamor for state funding. Ironically, although Trinity Lutheran Church claimed it was being "discriminated against" by the long-standing Missouri state constitutional prohibition on funding of churches, Trinity may also find itself beholden to state anti-discrimination measures when it comes to the use of the funded property.  They may also find that they have surrendered publicly funded facilities, for instance, a playground, to public anti-discrimination statutes that previously exempted churches.

Churches that claim they are being discriminated against when applying for public funding may find themselves subject to anti-discrimination laws in the use of that funding.

This decision is a game-changer.

“The fondness of magistrates to foster Christianity, has done it more harm than all the persecutions ever did. Persecution, like a lion, tears the saints to death, but leaves Christianity pure: state establishment of religion, like a bear, hugs the saints, but corrupts Christianity.”- John Leland (1804)

 
 

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