A Political Playground: Trinity, Choices, and the Separation of Church and State

By Tyra Pearson; Staff Member (Vol. 16)

In light of the recent Supreme Court decision, many Americans are beginning to think that the idea of “separation of church and state” is in jeopardy. In Trinity Lutheran Church v. Comer, the Court ruled a Missouri program denying funding to religious groups as unconstitutional under the First Amendment, even though that funding would not be for religious purposes.  Some are saying that the Supreme Court, in its decision to invalidate this state law, upset the idea of “separation of church and state” and dramatically changed the interpretation of the First Amendment. The question is whether this is a legitimate concern. I argue that it certainly is. The Court’s decision in late July is unprecedented and left many states scratching their heads, wondering when they are allowed to prohibit funding to a religious entity and not violate the First Amendment.

The Missouri Department of Natural Resources (“Department”) offers state grants to help private and public schools, as well as nonprofit entities, purchase rubber playground surfaces. The Trinity Lutheran Church (“Trinity”) applied for this grant in order to resurface the preschool and day care center grounds. However, the Department had a policy of disqualifying religious organizations from receiving this grant. When Trinity applied for the grant, it was ranked “fifth among the 44 applicants,” based on the Department’s proscribed criteria, including population poverty level and the applicant’s plan to promote recycling. However, despite high scores, the Department declared Trinity ineligible under the rationale that Article 1, section 7 of the Missouri Constitution prohibited the Department from offering the grant to Trinity. Before the Supreme Court, Trinity argued that the Department’s failure to approve Trinity’s application violated the Free Exercise Clause of the First Amendment.

The Court agreed with Trinity. Chief Justice Roberts, writing for the Court, looked to precedent to support the Court’s reasoning. First, he compared it to a previous Supreme Court decision, McDaniel v. Paty. In this case, the Court struck down a Tennessee law under the Free Exercise Clause. This law banned ministers from serving in elected office solely because of their status as ministers, thus impairing their free exercise of religion. Roberts stated that the Department’s policy is analogous to McDaniel because the policy discriminates against the church by disqualifying Trinity from the grant solely because of its status as a church.

The Court then distinguished this case from Locke v. Davey. In Locke, the state of Washington formulated a scholarship that allowed recipients to use the monetary award for post-secondary schooling. However, students were not permitted to use the money to pursue a devotional theology career. The Court ruled that the state did not violate the First Amendment because the plaintiff was not denied a scholarship because of who he was, but because of “what he proposed to do.” He was going to use the funds in his preparation for future ministry. Roberts stated that this case is different: in Trinity, the Department is denying the church funding because it is a church, and not because of what it intends to do with the funds.

In Trinity, it looks like the Court’s decision turned on the use of the funds.  However, two dissenting justices, Sotomayor and Ginsburg, did not agree with the Court’s holding or reasoning. They believe that the Court made a mistake by making this case simply about resurfacing the playground. They asserted that this case is about the relationship between the church and state; and through its decision, the Court has altered that relationship. Sotomayor argued that funding a house of worship underwrites religious exercise in violation of the Establishment Clause.

We cannot disregard Sotomayor’s and Ginsburg’s concerns. They are afraid that this holding will allow states to use the Court’s rationale to promote religious institutions, which would lead down the slippery slope of a governmentally established religion. Ultimately, states should be allowed to prohibit funding to religious institutions in order to make it clear to their constituents that the government is not favoring a particular religion. Yes, the majority and Trinity say a playground is secular in itself; however, the playground “serves as a ‘ministry to the Church and incorporates daily religion and developmentally appropriate activities.” The church is using the playground to further its religious mission by allowing “children to grow spiritually, physically, socially and cognitively.” Thus, the playground surface is “integrated with and integral” to Trinity’s mission and as a result no longer carries the status of being secular.

For example, the act of using nails is nonreligious in itself; however, a church can use these nails to build an altar, which is no longer secular. The Court’s opinion does not qualify its decision by stating that Trinity cannot ever use the playground for religious purposes. One day if the church is too crowded or if the congregation wants a change of scenery, Trinity could use this playground to hold religious services and teachings. Nothing in the majority’s opinion prohibits it. The Court ultimately cannot predict what these religious entities will do. What seems now to be nonreligious could be anything but.

This decision will likely open the door to more expensive and needless litigation. The Court does not give any guidelines on how to determine whether or not public funding given to these institutions will be put to improper religious use. States will be required to perform a deeper and longer analysis of each application, which can be costly and cause undue delay for nonreligious entities that are in need of this funding. Footnote 3 of the opinion does seem to limit the Court’s decision to discrimination “based on religious identity with respect to playground resurfacing” and not other forms of discrimination. However, the court does not give guidelines or examples to what forms of discrimination are permitted. The problem still remains and states are left wondering under what circumstances is a state’s interest in remaining secular given priority. For these reasons, I agree with the dissent. For the purposes of protecting the integrity of the First Amendment and the court system from a flood of cases, we should not allow states to fund religious institutions.