Sotomayor Sees ‘Radical Mistake’ in Letting Churches Compete for Playground Grants

By Terence P. Jeffrey | June 26, 2017 | 1:02pm EDT
Justice Sonia Sotomayor on Sesame Street (Screen Capture)

( - In dissenting from the Supreme Court’s 7-2 decision that Missouri cannot discriminate against a Lutheran church that sought to compete in a state grant program that paved playgrounds with material made from recycled tires, Justice Sonia Sotomayer argued that the court’s opinion “would mark a radical mistake.”

Justice Ruth Bader Ginsburg was the only justice to join Sotomayor in dissenting from the majority’s opinion in Trinity Lutheran Church of Columbia v. Comer.

Writing for the court, Chief Justice John Roberts, joined in full by liberal Justice Elena Kagan, concluded that a state government could not categorically deny churches that have playgrounds from competing with other institutions in the state grant program.

“The Free Exercise Clause ‘protects religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their religious status,” wrote Roberts. “Applying that basic principle, this court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”

The grant program in question was run by the Missouri Department of Natural Resources. It argued that it was acting under a provision of the Missouri state constitution that prohibits any state money from going to any church, period.

That provision says:

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any dis­crimination made against any church, sect or creed of religion, or any form of religious faith or worship.”  

The court ruled that Missouri cannot use this provision to prevent an organization, simply because it is religious, from competing with other organizations in a grant program.

“Trinity Lutheran is not claiming any entitlement to a subsidy,” Roberts wrote.

“The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church—solely because it is a church—to complete with secular organizations for a grant,” said the chief justice.

Referring to the Missouri practice his opinion struck down, Roberts said: "The rule is simple: No churches need apply.”

“[T]he 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,” concluded Roberts.

Along with Kagan, Justices Anthony Kennedy and Sam Alito joined Roberts’ opinion in full. Justice Stephen Breyer joined it in a concurring opinion. Justices Neil Gorsuch and Clarence Thomas each wrote a short concurring opinion in which the other joined.

Breyer argued that preventing a Lutheran church from participating in a playground pavement program was like preventing it from participating in public police and fire protection.

“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,” wrote Breyer.

“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,” he said. “I see no significant difference.”

Sotomayor, joined by Ginsburg, sharply disagreed with the court’s 15-page opinion--expressing her disagreement in a 27-page dissent.

She argued that the U.S. Constitution prohibits the church from participating in a state competition to win a grant to pave a playground because the church uses its playground to spread religion.

“The Establishment Clause does not allow Missouri to grant the church’s funding request because the church uses the Learning Center, including its playground, in conjunction with its religious mission,” said Sotomayor. “The court’s silence on this front signals either its misunderstanding of the facts of this case or a startling departure from our precedents.”

‘The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers,” wrote Sotomayor. “The Church’s playground surface—like a Sunday School room’s wall or the sanctuary pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

The court she argues cannot ignore her conclusion. “For if it agrees that the funding here will finance religious activities, then only a rule that considers that fact irrelevant could support a conclusion of constitutionality,” she said

“It has no basis in the history to which the court has repeatedly turned to inform its understanding of the Establishment Clause,” she said. “And it favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded enough to so successfully.

“Such a break with precedent,” she concluded, “would mark a radical mistake.”

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