Trinity Lutheran decided in favor of church today

Today, the last day of the Supreme Court’s 2016 Term, the Court handed down its opinion in Trinity Lutheran v. Comer, which we have discussed recently. The dispute centered upon whether or not the Lutheran church was eligible for a grant to purchase some materials for its preschool’s playground under Missouri’s Blaine Amendment. That is, it was the position of Missouri state government that the church was not eligible for a grant because it was a church. Not so fast, the Court held today in a 7-2 opinion by Chief Justice Roberts; to make the church ineligible for the grant forces the church into the impermissible position of choosing between its religious character and the grant money. Justices Sotomayor and Ginsburg, in dissent, claim that the Court’s decision today in favor of the church “weakens” the United States’ commitment to a “separation of church and state.” A Catholic integralist obviously hopes they are correct.

What is interesting is that the majority does not spend much time talking about the specifically anti-religious character of the Missouri law that forbade the church receiving the grant money. Even Justice Thomas, whose opinions often include detailed historical analyses (we are thinking especially of his masterful concurrence in McDonald v. Chicago), passes over this historical question in silence, directing his brief opinion to the question of precedent. Indeed, the very phrase “separation of church and state” comes from this historical context. Now, there has been enough Free Exercise Clause jurisprudence that an appellate court can simply rehearse precedent; however, one hopes that the Court squarely addresses the history of these provisions—indeed the history of the assertion that there is a separation of church and state mandated by the Constitution—in some future opinion.