Justice, Religion, SCOTUS, Supreme Court

Minority Of Court Would Rather Not Make A Federal Case Out Of Trinity Lutheran, A Federal Case

We're going to have to talk about a Footnote, but it's cool.

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(Photo by John Li/Getty Images)

It’s easy to be horrified with the Court’s decision today in Trinity Lutheran v. Comer. The Court ruled 7(!) – 2 that the state could not deny access to a public playground improvement benefit to a religious school. The Court held that the Free Exercise clause requires giving the religious school access to a taxpayer funded benefit, even though there is not enough of that benefit to go around to even all of the public schools. Writing for the majority, Chief Justice John Roberts went so far as to say this:

But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.

“Odious,” y’all. Elena Kagan signed onto that opinion in full. Stephen Breyer wrote separately but concurred in the judgement. What seems “odious” to me is that a taxpayer funded program providing resurfaced school playgrounds made out of recycled tires (supported by a tax on tire purchasers) can now benefit a religious institution before all the public schools have had their playgrounds resurfaced. You’re telling me that there aren’t some public schools in St. Louis who could use a bouncy playground before we get around to helping out the church? “Blessed is he who bends the unscraped knee, for he has truly diverted the public largess towards my glory.”

Suffice it to say that I “strenuously object” to the Court’s ruling here. Justice Sonia Sotomayor read parts of her blistering dissent (joined by Ruth Bader Ginsburg) from the bench. I think she has the right of it.

This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

While Sotomayor is willing to go to the mattresses here — against Neil Gorsuch who has quickly established himself as the kind of arch-conservative worth stealing a seat in order to elevate to the Court — there is a soft middle on the Court which seems to be saying “Meh, it’s a playground, whatevs.”

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The dispute can be seen in the already infamous “footnote 3” of the Roberts opinion:

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, who wrote it, along with Anthony Kennedy, Samuel Alito, and Elena Kagan joined this footnote. That’s only 4 justices, so the footnote is not part of the mainline holding.

One interpretation of what that footnote means could be that a playground is a playground and redirecting public funds towards religious schools in the form of vouchers is another thing entirely so piss off about it for now. You know, “for instance” that’s what this could be saying.

It’s a very “let’s not make a federal case out of playground, mmmkay?” kind of note. It’s me telling my kid “no, you can’t have a cookie after midnight” without establishing Mogwai principles about how late it’s okay to have a snack.

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And while that footnote is a minority opinion, Breyer’s concurrence also suggests that this case will not particularly influence his thinking when it comes to bigger “free exercise” fights potentially on the horizon:

I agree with much of what the Court says and with its result. But I find relevant, and would emphasize, the particular nature of the “public benefit” here at issue…

The Court stated in Everson that “cutting off church schools from” such “general government services as ordinary police and fire protection… is obviously not the purpose of the First Amendment.” 330 U. S., at 17–18. Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference.

Right, in Breyer’s world, giving religious schools access to the public funds they need to keep their children safe is one thing, forking over taxpayer funds so they can thrive while public schools wither might be another thing.

Adding in the Sotomayor/Ginsburg dissent which is not about this parochial life at all, and you can make a case that the Trinity Lutheran decision is very good for religious schools who want taxpayer funded upgrades, but not particularly useful for religious schools who want taxpayers to fund their larger operations. Sotomayor and Gorsuch have previewed the larger fight to come, but the main of the Court is not there yet.

It’s still a terrible decision. Full disclosure: Under normal circumstances, I’m not the liberal you’re looking for when it comes to issues of public funds for parochial institutions. I’m not an absolutist on this. Intellectually, I probably look at things very much like Justice Breyer does, which is embarrassing for me because Breyer is the weakest liberal we have. But, when it comes to children at least, I don’t think their opportunities to get a safe education should be limited by the fact that their parents religious. If I have to kick in some tax dollars to make that happen, so be it.

But public schools have to get the public money FIRST. We should obviously make the pie big enough that everybody can get a slice, but when issues of scarcity arise, the public institutions have to get the public money available before religious schools can wet their beaks. What drives me insane about this decision is that there were public schools who ALSO NEEDED THEIR PLAYGROUNDS RESURFACED in the state of Missouri. People who are not Lutheran bought tires in Missouri, and paid more for them so those schools could get their new bouncy playgrounds. Giving the Lutherans a new playground before everybody else got theirs feels like a religious preference much more than a religious exclusion. The public schools should have come first.

But this is why we fight. This is why we want to Court to decide actual cases and controversies, and not give theoretical opinions from the bench. Playgrounds are different from buses which are different in kind from textbooks. This is a 7-2 decision, but it’s far from a slam dunk for either ideological side.

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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