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Supreme Court School Vouchers

This photo taken Jan. 26, 2016, shows the playground at Trinity Lutheran Church in Columbia, Mo. (Annaliese Nurnberg/Missourian via AP)

WASHINGTON • In a 7-2 decision, the Supreme Court overturned lower courts Monday and decided in favor of a Columbia, Mo., church, that had argued that its constitutional rights had been violated by the state Department of Natural Resources’ denial of scrap rubber for its playground.

Writing for the majority in Trinity Lutheran Church of Columbia vs. Comer, Chief Justice John Roberts proclaimed that Trinity was “asserting a right to participate in a government benefit program without having to disavow its religious character.

“The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant,” Roberts wrote, in a decision in which Justices Clarence Thomas, Neil Gorsuch, Anthony Kennedy, Stephen Breyer, Elena Kagan and Samuel Alito concurred.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. In a strongly worded dissent twice as long as Roberts’ majority, Sotomayor warned that “the court today blinds itself” to the history of church-state separation, “and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”

Missouri’s top elected officials praised the decision, despite the fact that it was the state — under the previous administration of Democrat Jay Nixon — that had argued that it had constitutionally denied Trinity participation in a scrap-rubber program based on a 19th-century state constitutional amendment.

In a statement, Gov. Eric Greitens, a Republican, said that “people of faith won an important victory today.

“Earlier this year, I reversed Missouri’s policies that discriminated against religious organizations,” he said, of his April decision to Nixon’s policy and allow religious organizations to receive state grants under the program. “The ACLU and others attacked our decision. We did not back down, and we will continue to fight for people of faith.”

Attorney General Josh Hawley, who is being pushed by some Republicans to run for the U.S. Senate next year, said the decision created “a great day for Missouri’s Trinity Lutheran Church, and an even better day for religious freedom in America.”

Hawley singled out Nixon by name, saying the previous governor “was wrong to interpret Missouri’s constitution to require such unlawful discrimination. Today’s decision means discrimination of this kind will never be permitted again in the state of Missouri, or anywhere.”

Other reaction

David Cortman, the lawyer who argued the case for Trinity, said the ruling was not a “government endorsement of religion.”

Cortman, who works for the Alliance Defending Freedom, added, “As the Supreme Court rightly found, unequal treatment that singles out a preschool for exclusion from such a program (that Missouri offered) simply because a church runs the school is clearly unconstitutional.”

Rep. Ann Wagner. R-Ballwin, who also may run for the Senate in 2018, issued a statement praising the decision, saying: “I stand with the many faith-based organizations across Missouri that provide valuable services to the community.”

Sen. Roy Blunt, R-Mo., called ita key victory for Americans’ right to religious liberty.”

But Daniel Mach, head of a program on freedom of religion for the ACLU, issued a statement saying the ACLU was “disappointed” in the decision.

“Religious freedom should protect unwilling taxpayers from funding church property, not force them to foot the bill,” he said. “The court’s ruling, however, focuses specifically on grants for playground resurfacing and does not give the government unlimited authority to fund religious activity.”

In his majority decision, Roberts wrote that “the express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant.

“The consequence (of denying the church) is, in all likelihood, a few extra scraped knees,” Roberts wrote, referring to the church’s attempt to cover pea gravel with the state’s recycled rubber. “But 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.”

But Sotomayor said it was difficult to separate the playground from the religious expression going on inside the church.

“Within its walls, worshippers gather to practice and reaffirm their faith,” Sotomayor wrote. “And from its base, the faithful reach out to those not yet convinced of the group’s beliefs. When a government funds a house of worship, it underwrites this religious exercise.

“Today’s decision,” Sotomayor concluded, “discounts centuries of history and jeopardizes the government’s ability to remain secular.”

But in oral arguments in April, several justices had noted that other public services, like fire and police, are routinely given to houses of worship without constitutional harm. The majority continued that line in its decision, arguing that the church was only asking to compete for something with secular groups.

“Trinity Lutheran is not claiming any entitlement to a subsidy,” Roberts wrote. “It is asserting a right to participate in a government benefit program without having to disavow its religious character. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the church — solely because it is a church — to compete with secular organizations for a grant.”

‘Strong decision’

Religious and constitutional groups had looked upon the decision with great interest.

Carrie Severino, chief counsel for the conservative Judicial Crisis Network, said the court “issued a strong decision in defense of religious freedom, reminding states that they cannot exclude groups or individuals from public benefit simply because of their religion.”

And Education Secretary Betsy DeVos, a proponent of school choice in which public dollars could ostensibly go with students to religious schools, called the decision “a great day for the Constitution” that “sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment.”

Melissa Randol, executive director of the Missouri School Boards’ Association, said the ruling was “quite narrow and does not address the issue of school vouchers or the constitutionality of the provision in the Missouri Constitution that prohibits the expenditure of taxpayer dollars for private schools that are not accountable to the public for student achievement or how tax dollars are spent. Nothing in the ruling changes that prohibition.”

She said the association “remains strongly opposed to public subsidies for unaccountable private institutions.”

The “Comer” in the decision is Carol S. Comer, director of the Missouri Department of Natural Resources. But Greitens’ decision to allow future grants to be made available to religious institutions in competition with secular groups had created a unique situation in which Missouri was essentially arguing against itself.

James Layton, a former solicitor general for Missouri, argued the state’s case pro bono before the court after Hawley had recused himself and his office.

The court had directed its sharpest questions at Layton during oral arguments here in April. Layton had argued that a “bright line” should be maintained prohibiting state funds for state aid for churches and other religious organizations.

Breyer equated rubber for the school’s playground with vaccinations for the state’s children, and other justices noted that there was a secular use for the playground when neighborhood kids came to swing and climb.

But Layton said then that Missouri did not want to be “selecting among churches. We don’t want to be in a position where we are making a visible, physical improvement on church property.”

But with the decision Monday, and with the state’s current political hierarchy taking the opposite position of Layton’s, Missouri and the 7-2 court have set a new precedent.

Just how wide is now the subject of debate.

While religious conservative groups hailed it as a sweeping decision for religious liberty,

Layton said two aspects of the decision could make it less sweeping than some are portraying it.

One is the fact that a footnote describing the case as “express discrimination” got only four of nine possible votes, he said.

“Second, and perhaps of more immediate importance, the court was not asked to and did not rule that Missouri’s bar on public money going to churches was unconstitutional on its face, nor that just because Missouri has a scrap tire program that gives grants to some preschools, it must give them to all,” Layton said.

“The court ruled that if the state has a ‘generally available public benefit program,’ it cannot make churches ineligible because of their ‘religious character.’ But the Court did not hold that the state cannot have criteria that ultimately exclude churches — so long as the criteria do not include religious status.”

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Chuck Raasch is a reporter for the St. Louis Post-Dispatch.