Innocuous SCOTUS Ruling Opens Door For Discriminatory Religious Institutions to Access Public Funds

On its surface, the first religious liberty case heard by the now-fully-seated Supreme Court seems to have very little to do with religion. As attorneys for Trinity Lutheran Church of Columbia framed their arguments before the high court earlier this month, the Missouri Synod congregation just wants to make its playground safer for children who attend the church preschool, and the neighborhood families who utilize the playground during off-hours. Who could possibly oppose that?

As it turns out, even the state of Missouri ultimately reversed course and decided that religious groups can be eligible to receive state funding (through a scrap tire playground resurfacing grant) for that particular secular purpose. But the Court decided to hear the case anyway, and because a majority of the Justices appeared ready to rule in favor of the church, it’s necessary to start contemplating the implications of a Supreme Court ruling that could redefine what kinds of state programs and benefits tax-exempt religious institutions can demand access to.

If the facts in Trinity Lutheran Church of Columbia, Inc. v. Pauley are straightforward and easily understood, the legal issues raised by the case are anything but. It’s a classic example of “hard facts make bad law,” explained Elizabeth Platt, director of Columbia Law School’s Public Rights/Private Conscience Project. “This is not a case about whether it’s wise to provide funding for a playground, but whether it’s mandated by the Constitution, which is a very different question,” she continued. Deciding that a state is required to make funds that are available to secular groups equally available to religious groups “raises an enormous number of church-state questions,” Platt added.  “And it really puts the state into a very tenuous position, in terms of other potential Establishment Clause violations.”

That was essentially the argument advanced by Missouri’s former solicitor general (who argued the case from a position that Missouri’s new governor officially abandoned). But the argument didn’t seem to win many friends at the high court, despite Justice Sonia Sotomayor doing her best to tease out the numerous Establishment conflicts such a sweeping mandate could evoke. The problem, in other words, isn’t a yes/no ruling on the merits (a moot point, in any case, as noted above) so much as the gaping Establishment hole its contours left open.

Whereas the bulk of current “religious liberty” litigation involves religious individuals and institutions seeking exemptions from state programs or requirements (most often from LGBTQ-inclusive nondiscrimination policies), in Trinity Lutheran, the roles are reversed. It’s the church seeking access to a publicly funded grant, while the state counters that it cannot provide funds to religious groups, lest it appear to be offering preferential treatment to one religious sect over another. As SCOTUSblog explains, the central legal question in the case is “whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

A Supreme Court ruling which declares that religious institutions cannot be excluded from an “otherwise neutral and secular aid program” could well serve as a stalking horse for religious institutions to then seek broad access to state and federal funds, while simultaneously maintaining their tax-exempt status and, in some cases, continuing to pursue and (especially under the current administration) be granted religious exemptions to otherwise neutral and generally applicable laws.

“Trinity Lutheran prevailing in its case would be an inversion of the longstanding principle that the separation of church and state is good for all of us, religious folks included,” said Haven Herrin, the executive director of Soulforce, an LGBTQ-focused social justice nonprofit that aims to “sabotage Christian supremacy.” 

“By framing their case as a betrayal of the Free Exercise Clause, [Trinity Lutheran] argues that not getting to put their hands in the money pot is a transgression against their absolute entitlement, and that limiting their access to all resources is an attack on their ability to freely exercise their religion,” Herrin continued.

That tactic isn’t novel, of course, but a Supreme Court ruling that affirms this strategy sends a strong message to other “religious freedom” advocates that they can have their cake and eat it, too. As long as an individual or group expresses a “sincerely held religious belief,” adherents will expect to be granted sweeping exemptions to laws and policies that they contend conflict with their faith and the absolute expression thereof.

“A decision from the U.S. Supreme Court in favor of Trinity Lutheran puts the public coffers within handy reach of discriminatory religious institutions,” Herrin concluded. “That decision would diminish the meaning of Free Exercise Clause, move advocates for separation of church and state, including its funds, from the offensive to the defensive, and reify a culture of selective religious freedom that says, ‘You can do what you want, treat women and LGBTQI people as poorly as you wish, as long as you do it under the name of your Christian God.'”