This morning, the United State Supreme Court ruled 7-2 in favor of a Columbia preschool that was denied a state grant to purchase scrap tires for their playground. (For background on the case, check out this SMI paper).
The Court reaffirmed the position that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” In order to justify that penalty, the state has to clear a very high bar in proving that imposing that penalty serves a compelling state interest.
Missouri did not clear that bar. As Chief Justice Roberts argues in the opinion of the court, “the Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns.” That is not enough, the court ruled, with Chief Justice Roberts punctuating his opinion by stating, “the 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 . . . and cannot stand.”
This is an important victory for civil society and for religious institutions that feed the hungry, house the homeless, educate the young, and provide healthcare to the sick. However, this case does not settle the issue once and for all.
The Chief Justice’s opinion contains a footnote around which we can imagine the next round of lawsuits will hinge. In footnote 3, the Chief Justice writes “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.”
So what does this mean for school vouchers, for example? We don’t know. In concurring opinions, Justices Thomas and Gorsuch argue that this ruling should extend to cases beyond identity into how funds are used, but that appears to be left for another day. This is not the last we will hear about religious organizations participating in public programs, but it is a shot in the arm for the argument that they have a right to do so.