In 2012, a Lutheran Church day-care center in Columbia, Mo., decided it wanted to replace the pea gravel on its playground with a rubberized surface made from recycled tires. On Monday, that playground became the focus of what could be one of the U.S. Supreme Court’s most far-reaching religious freedom rulings in decades.
Or not. Perhaps the court’s decision in Trinity Lutheran Church v. Comer might turn out to be just about a playground. It all depends, literally, on a footnote.
Chief Justice John Roberts wrote for the 7-2 majority that the Missouri Department of Natural Resources had erred in disqualifying the church’s application for the state-funded playground program on church-state separation grounds. But included in his ruling was the potentially famous Footnote 3:
“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.”
But Justices Neil Gorsuch and Clarence Thomas, who voted with the majority, weren’t buying the narrow “playground only” argument. Neither was Justice Sonia Sotomayor, who wrote a passionate dissent in which she was joined by Justice Ruth Bader Ginsburg.
Gorsuch and Thomas, in separate concurrences, indicated that they would be willing to extend Roberts’ “no discrimination on religious identity” argument to “no discrimination on religious use” cases, such as use of tax dollars by parochial schools.
The court decides cases on “general principles,” Gorsuch wrote, “and the general principles here do not permit discrimination against religious exercise – whether on the playground or anywhere else.”
The potential for broadening what Roberts hoped would be a narrow decision is precisely what Sotomayor and Ginsburg were worried about. “This case is about nothing less than the relationship between religious institutions and the civil government – that is, between church and state,” Sotomayor wrote in her dissent. “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.”
She is right to worry. School-choice and religious-liberty advocates, emboldened by President Donald Trump’s appointment of Gorsuch, are eager to get a school vouchers case before the court. They argue that if a playground operated by a church day care is a purely secular amenity, so, too, is a church school. They are less eager to have churches whose schools receive public funds pay taxes to support public functions.
Roberts thought the case was simple: “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.”
But to his right and his left were justices with bigger dreams and bigger fears. There are bigger tests ahead for what is odious to the Constitution.