The First Amendment’s treatment of religion has an internal tension. On one hand, Americans are guaranteed the freedom to choose their beliefs and act on them. On the other, they may not enlist the government to support or advance their religion. Drawing the line is simple in theory but often debatable in practice, as the Supreme Court showed last week. And where it is drawn has big effects on public policy.
The state of Missouri has a program to encourage the use of material from recycled tires as a surface for playgrounds. Nonprofit organizations are eligible for grants to pay for this type of resurfacing. The Trinity Lutheran Church Child Learning Center in Columbia wanted to replace its gravel with poured rubber, but it was denied funds because of a state constitutional provision that bars providing funds to any church. Trinity Lutheran sued, arguing that it was being punished for its religious character, in violation of the free exercise clause.
By a 7-2 vote, the court ruled in favor of Trinity Lutheran. The state provision, wrote Chief Justice John Roberts, forces the church to make a choice: “It may participate in an otherwise available benefit program or remain a religious institution.” Denying it “a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”
Just as the government provides police and fire protection to churches, and just as it may provide bus transportation to parochial as well as public schools, it is obligated to let churches make use of this general public benefit.
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The justices were mostly in agreement on that point. But the majority opinion was careful not to encourage speculation about how it would handle other programs.
In a footnote, Roberts wrote, “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.” Justices Neil Gorsuch and Clarence Thomas dissented on that footnote, arguing, “The general principles here do not permit discrimination against religious exercise – whether on the playground or anywhere else.”
The ruling could have significant implications for the use of public funds for private schools, including religious ones. That became even clearer the next day, when the court sent two cases back to the lower courts to be assessed in light of what it said in the Trinity Lutheran case.
In 2015, the Colorado Supreme Court struck down a scholarship program for students attending private schools, including those operated by churches. It said the vouchers violated the state ban on providing money to religious entities. But if a state can’t block grants to resurface playgrounds at church-run schools, it may be hard-pressed to justify denying tuition aid to kids whose parents choose parochial schools. The court also asked the New Mexico Supreme Court to reconsider a decision excluding religious schools from a state textbook lending program.
The best outcome here would be to grant state and local governments the freedom to use vouchers to improve learning outcomes. They provide aid to kids who may have been poorly served by public schools. The purpose and effect of vouchers is not to subsidize religion, but to empower students and parents to take advantage of whatever education they think is best for them.
If the court eventually agrees with that, it would be a victory for religious liberty – and for children seeking an education.