April 13, 2024
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April 13, 2024
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Swinging and Sliding in the Shul Playground

If a child falls in a playground of a school that is part of a church or a shul, do they not bleed? That was basically the question answered in one of the most anticipated cases, and final decisions, decided by the Supreme Court during the Spring term. Trinity Lutheran Church v. Comer involved a challenge by a Columbia, Missouri, church that runs a daycare and a preschool. Missouri, like many states, has a state law that prohibits the use of public funds for religious institutions, even if the use of the funds is secular in nature. In 2012, the school applied for a grant under a state-run program updating playgrounds in parks and schools in order to resurface the church playground to make it safer for the children attending their school, and other local children living in neighborhood.

After Trinity Lutheran applied for the grant for its school playground, Missouri conceded that the church met all of the criteria for funding under the grant, except for one—it was a religious institution and therefore ineligible under Missouri’s Constitution, since state funds cannot be used for the benefit of “any church, sect, or denomination of religion” under Missouri’s law. On those grounds the grant was rejected.

Trinity sued the state, challenging that the denial violated the First Amendment’s free exercise clause. The basis of the argument is that a state cannot discriminate against a religious school solely because it is religious in nature. The church argued that just because its school was in a house of worship doesn’t mean the children that attend the school there get hurt any less while playing outdoors. The church also noted that the playground was open to the general public after school hours so that resurfacing the playground would be of benefit to the general public, not just church members.

The state said a wall of separation between church and state is a fundamental value that should not be interfered with by the courts, and that such a law requiring that one institution not interfere against the other is a fundamental democratic value. On those grounds, two lower courts dismissed Trinity’s lawsuit, until the Supreme Court got the case.

In a major finding, perhaps redefining the understanding of the tension between two First Amendment clauses—one prohibiting the establishment of religion by a state, and the other prohibiting restriction of the free exercise of religious practice—the court for the first time in about 50 years was asked to draw the line, and the Supreme Court found in favor of religious practice by a 7-2 majority.

Chief Justice Roberts wrote the majority decision. The key language is that under the Supreme Court’s cases interpreting the free exercise clause, the government needs a very good reason to rely on someone’s religious identity to deny a benefit that would otherwise be generally available. And here, he continued, that is exactly what the state’s policy does: It discriminates against the church by barring it from receiving the playground funding just because it is a church. The church cannot both continue to operate as a church and receive the funding; it has to choose between the two. Moreover, Roberts added, the state has not provided anything close to the kind of compelling reason that it would need to exclude the church from the program: All it has said is that it wants to try to steer clear of concerns about violating the Constitution’s establishment clause, which bars the government from favoring religion. Accordingly, the provision in the Missouri Constitution disallowing funds to religious organizations is unconstitutional.

Roberts notes that this case is novel, and it is the first time the Supreme Court is saying that a state must provide funds to a church, but he added that in this type of situation the facts are clear: “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 all the same, and cannot stand.”

While it is tempting to read this case as just being about playgrounds, it would be foolhardy to do so. This has major implications, even locally. One of the repetitive arguments made against state funding of the secular aspects of yeshivot here in New Jersey is the “wall between church and state.” The truth is that while that has become a well-worn phrase, it is actually never found in the Constitution. It has been raised in several prior Supreme Court cases, the most famous of which is Lemon v. Kurtzman, a case decided in 1971 that was the last before Trinity Lutheran to try to analyze the proper involvement between the state, religion and funding.

In Lemon, the Court concluded that any legislation involving religion (1) must have a secular purpose, (2) the effect of the legislation must be neutral so that it neither advances nor prohibits religion and (3) the legislation cannot “excessively entangle government with religion.” This has become known as the Lemon test—and has become the key analysis in determining whether a law was permissible or not.

Although in Trinity the Court did not explicitly say so, I believe the Lemon test is dead. Maybe not completely. The first and second prongs still stand—but Justice Roberts makes clear that any legislation passed by a state or the federal government cannot discriminate against a religious institution. By definition, this means that there will be times that governmental practice will be entwined by religious practice, and cannot avoid it. This can have an effect on the legal prospects of vouchers at the very least. If a program is created, it seems clear a jurisdiction cannot object on the grounds that religious schools benefit. It may mean that the secular programs of yeshivot are entitled to state aid, maybe even teachers’ salaries involving classes in general studies.

If it was not otherwise clear that the Trinity Lutheran decision was a game changer, the vehement reaction of the two dissenting judges seemed to make that point clear. Justice Sotomayor and Justice Ginsburg were angry. And in a rare display of pique they read their dissent from the bench out loud. Sotomayor and Ginsburg took turns saying that the “decision was not really about discrimination,” nor was it about “recycling a playground.” Rather, they said it was in fact “about nothing less than the relationship between religious institutions and the civil government—that is, between church and state.”

“The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” But if the separation of church and state means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The dissent said that the decision makes the phrase “separation of church and state” nothing more than “a constitutional slogan.” Another sign of Sotomayor’s discontent: She closed both her written opinion and her summary from the bench with the phrase “I dissent,” rather than the traditional phrase “I respectfully dissent.”

While this decision changes the analysis, it is far from the final word. In fact, within the week that the Court decided Trinity Lutheran it accepted an appeal from a religious baker in Colorado who refused to personally create a wedding cake for a gay couple. Jack Phillips was fined by the state for discrimination against homosexuals, who are protected under state law, but Phillips says the state has it wrong. He says he has nothing against gay people and gay customers are free to buy any pre-made products in Masterpiece Bake Shop, the bakery he owns. However, Phillips argues, he should not be forced to personally create a cake expressing a viewpoint with which he personally vehemently disagrees. Two lower courts have affirmed a Colorado state agency’s decision to fine Phillips. He says Colorado is establishing a religious practice by restricting his free exercise. In light of Trinity he says he is facing discrimination, merely because of his religious viewpoints. The Supreme Court will consider the matter in their next term.

By Stephen Loeb

 Stephen Loeb is an attorney who owns a law practice licensed in New Jersey and New York. His email is [email protected]. He can additionally be reached at 212-766-5268.


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