SCOTUS ruling could blur line between separation of church and state

By Laura Halleman | Jul 6, 2017

WASHINGTON – A U.S. Supreme Court decision that requires Missouri to fund church preschools, just as they do other preschools, could change the way the court reviews the Establishment Clause and Religion Clauses.

In the case Trinity Lutheran Church of Columbia Inc. v. Comer, Trinity Lutheran Church operated a preschool and daycare center and applied for a playground resurfacing grant. The state of Missouri offers grants to nonprofit organizations interested in installing playground surfaces made from recycled tires.

Trinity’s application was rejected by the Missouri’s Department of National Resources on the grounds that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

The U.S. Supreme Court agreed with Trinity that its exclusion was a violation of the Free Exercise Clause.

“The Supreme Court ruled that to exclude the church pursuant to separationist language in the Missouri Constitution violated the federal Free Exercise Clause,” John Taylor, Jackson Kelly Professor at the WVU College of Law, told The West Virginia Record. “This probably means that states don’t have much leeway to insist on greater separation of church and state than the federal Constitution, and that changes the law a bit from when the court last visited this territory in its 2004 decision in Locke v. Davey.”

The decision could change the way the court perceives the Establishment Clause, which would mean that religious institutions must be included in general state funding and at taxpayers’ expense.

“The law now is that states generally can include religious institutions in general grant programs that use secular criteria in awarding the grants. That has been true since the early 2000s at the latest. The change here is that until Trinity Lutheran, states in many circumstances were thought to have a choice in administering grants,” Taylor said. “They could include religious institutions or exclude them. After Trinity Lutheran, the law seems to be moving toward the position that if the state administers a grant program, it must include religious institutions on equal terms even if the state constitution appears to call for more stringent separation of church and state than the federal Constitution.”

Taylor added that taxpayer funding of repairs or additions on a church preschool is not necessarily a violation of church and state.

“As the court read the Establishment Clause from 1947 until some point between about 1985 and 2002, it probably was. The court began moving away from understanding the Establishment Clause as “separation of church and state” in the mid-1980s, and by the early 2000s it was pretty clear that funding a church playground as part of a general program with both secular and religious recipients would be OK,” Taylor said. “The bottom line is that the court has drastically changed its reading of the Establishment Clause over the last couple of decades.”

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