Supreme Court Considers Church-State Separation Case

The Supreme Court heard oral argument yesterday in a case dealing with whether Missouri can deny a religious school from participating in a program to make school playgrounds safer.


The Supreme Court heard oral argument yesterday in a case that ostensibly involves a Missouri program to provide aid to schools to construct safer playgrounds, but which could portend important developments for the relationship between Church and State:

WASHINGTON — The Supreme Court seemed ready to chip away at the wall separating church and state on Wednesday, with several justices suggesting that states must sometimes provide aid to religious groups. The case concerned a Missouri program to make playgrounds safer that excluded ones affiliated with churches, but it had implications for all kinds of government aid to religious institutions.

“This is a clear burden on a constitutional right,” Justice Elena Kagan said of the exclusion in the playground program.

Justice Neil M. Gorsuch, the court’s newest member, said the program amounted to “discrimination on the basis of status of religion.”

“We know that’s happened in this case, right?” he asked, leaving no doubt that he thought the answer was yes.

Justice Sonia Sotomayor was the most consistent voice on the other side, though she seemed to be in the minority.

“They’re just saying,” she said of the state, “we don’t want to be involved with the church.”

The question in the case, Trinity Lutheran Church v. Comer, No. 15-577, is whether officials in Missouri were entitled to reject an application from a Lutheran church for a grant to use recycled tires to resurface a playground.

Answering that question required the justices to consider doctrinal crosscurrents, including what earlier cases have called “the play in the joints” between two clauses of the First Amendment, which bar government establishment of religion and guarantee its free exercise.

“It’s a hard issue,” Justice Kagan said. “It’s an issue in which states have their own very longstanding law. It’s an issue on which I guess I’m going to say nobody is completely sure that they have it right.”

The Missouri Constitution bars spending public money “directly or indirectly, in aid of any church,” and the state Supreme Court has called for “a very high wall between church and state.”

Thirty-nine states have constitutional provisions limiting state aid to religious groups, Justice Sotomayor noted. “We don’t want, as a country — well, the vast majority of states — to fund houses of worship,” she said.

David A. Cortman, a lawyer for the church, said it sought only to protect children of all faiths from injury and could not use the rubber in its religious work. He argued that the state Constitution violated equal protection principles and the First Amendment’s guarantee of free exercise of religion.

“All we’re talking about is a safer surface on the playground for when kids play,” he said.

Justice Sotomayor said that Missouri was not interfering with the church. “You have a playground,” she said. “No one is taking the playground away from you.”

James R. Layton, a lawyer for the state, said it should have leeway to decide for itself whether and how much to help religious groups, and he noted that the program was a competitive one. “We don’t want to be in a position, for example, in this case, where we are selecting among churches,” he said.

A 2004 Supreme Court decision, Locke v. Davey, allowed Washington State to offer college scholarships to all students except those pursuing a degree in devotional theology. Mr. Cortman said that case involved direct support for religion. Playgrounds, he argued, were a different matter.

Justice Ruth Bader Ginsburg asked whether the church could “demand as a matter of federal constitutional right that that playground be funded, even though they have an admissions policy that favors members of their church?”

Mr. Cortman said yes. “They have a free exercise right to religious autonomy to decide who their members are,” he said.

As the argument progressed, several justices explored ways to rule in favor of the church on relatively narrow grounds. Justice Stephen G. Breyer suggested that two distinctions mattered: whether the state program concerned health and safety and whether it was universal or selective.

Universal programs providing for public safety, like police protection, he said, could not be denied to religious groups. He seemed to indicate that the playground program fit those criteria.

Mr. Layton said the playground program was not available to everyone, as funds were limited and so required choosing among applicants. But Justice Kagan said the program was not selective in the relevant sense.

“Essentially, this is a program open to everyone,” she said, adding that it “happens to be a competitive program, but everyone is open to compete on various neutral terms.”

Justice Samuel A. Alito Jr. asked about specialized programs to protect churches and synagogues from terrorist attacks and hate crimes. Mr. Layton said the Missouri Constitution would bar using state money for them.

Chief Justice John G. Roberts Jr. asked whether the state could bar students attending religious schools from group tours of the state capitol.

Mr. Layton said such visits are open to all. “Everyone who comes to the capitol gets a tour,” he said.

The justices considered a last-minute wrinkle in the case. Last week, Gov. Eric Greitens of Missouri, a Republican, announced a change in state policy. The state would no longer discriminate against religious groups in evaluating grant applications for programs like the one at issue in the case, he said.

“Why isn’t this case moot?” Justice Stephen G. Breyer asked.

Lawyers on both sides said the development did not make the case moot because Mr. Greitens or the next governor could reverse course.

“The political winds could change,” Mr. Cortman said. Mr. Layton echoed the point, though he noted that he had been asked to defend a position the state no longer holds.

Late in the argument, perhaps sensing that she might be on the losing side on the merits, Justice Sotomayor returned to the theme, saying the two sides were actually in agreement.

“If we have no adversity,” she asked, “hasn’t this case become mooted?”

Buzzfeed Supreme Court reporter Chris Geidner notes the same skepticism about Missouri’s all-out ban on religious schools participating in the aid program, as does SCOTUSBlog’s Amy Howe in her analysis of yesterday’s oral argument:

Arguing on behalf of Trinity Lutheran, David Cortman reiterated that the church’s preschool had been excluded from the state-run grant program solely because it was operated by a church. Ginsburg didn’t seem to see a problem with that proposition. She noted that in 1947, in a case called Everson v. Board of Education, the court had ruled that the Framers didn’t want tax money going to maintain churches or property. Shouldn’t that principle, she asked, govern here?

Cortman responded that this case is different, because the state can’t deprive religious groups of general government benefits like funding for playground resurfacing. But Sotomayor expressed doubt that the playground could be separated out from the church’s religious work. The playground is part of the ministry of the church, she suggested. Cortman urged the justices to focus on where the money goes; here, he emphasized, the money goes only to the playground resurfacing.

Sotomayor also observed that there has been a long history in the United States of states not wanting to fund churches; they should be free to do that in cases like this. We seem to be confusing funding, she suggested, with the practice of religion. The church isn’t going to close without a new playground surface, she stressed, so she was skeptical that this case actually implicates the right to free exercise of religion.

Justice Samuel Alito pushed back against the idea that provisions like the state constitutional amendment on which Missouri relied to deny funding to Trinity Lutheran reflect some sort of “honorable historical tradition.” Instead, he asked somewhat rhetorically, aren’t they based on “anti-Catholic bigotry”?

James Layton, who is now an attorney in private practice but was the solicitor general of Missouri when the state filed its briefs in the case last year, argued on behalf of Missouri. Layton told the justices that the state had barred funding from going to religious institutions because it wanted to avoid the appearance that it was both choosing among different churches and making physical improvements to churches.

Layton’s argument did not seem to resonate with most of the justices. Citing a variety of federal programs that provide funding that could flow to religious institutions – for example, a Department of Homeland Security program to improve security near high-risk targets like synagogues or mosques and a program to repair buildings damaged by the bombing at the federal building in Oklahoma City – Alito pressed Layton on whether the state’s policy would bar similar programs. Layton held firm, telling Alito that it would because state money cannot be used for religious institutions.

That response prompted Kagan – who during Cortman’s argument had seemed to be leaning toward the state – to ask whether the state’s position would also bar the state from providing police and fire protection to churches. Layton responded that it would not, reasoning that public safety is a service, rather than something for which the state gives funding to a religious group.

Justice Stephen Breyer seemed unconvinced. He first asked Layton whether the U.S. Constitution would allow a state to declare that it wouldn’t provide a church with police or fire protection. When Layton responded that would not, Breyer then moved on to what seemed to him to be the logical next step: How does the Constitution then allow Missouri to deny money for a new playground surface to a daycare center, whose students could face all kinds of potential hazards – ranging from a skinned knee to tetanus and a broken leg – from the older, less safe playground?

Alito seized on what he clearly viewed as a potential weakness in the state’s defense of its policy. How do you distinguish, he asked Layton, between a program that is open to everyone who wants the funding and a program like the playground resurfacing program that awards grants based on purely neutral criteria?

Other justices seemed to agree. Kagan suggested to Layton that, at bottom, the playground resurfacing program is open to everyone; the state is just depriving one specific group of nonprofits – religious ones – from applying. In a statement that bodes poorly for the state, she declared that “this is a clear burden on a constitutional right” because religious individuals and groups are barred from competing for an otherwise neutral benefit.

Gorsuch followed up on this line of questioning, asking Layton to explain why excluding religious groups from selective programs would be preferable to excluding them from a general benefit. Layton responded that selective programs tend to have more public visibility than the general ones, and can effectively amount to a government endorsement of the religious group and its mission. But Gorsuch was dubious. How, he asked, do we draw those lines?

Breyer worried aloud that Layton’s reliance on the differences between selective and general benefits would create its own set of problems. If we accept your argument, he told Layton, we will see “litigation forever.” “I am afraid of that one,” he concluded.

While this argument over whether or not to provide a school with financial assistance to construct a safer playground may seem like a minor issue, how the Court rules here could have major implications for Church-State relations going forward at a wide variety of levels. If it adopts the full position advocated by the Church, for example, then the Court would potentially be opening the door to allowing taxpayer dollars to go to a wide variety of otherwise religious activities up to and including things such as school vouchers for students to go to purely religious schools. Adopting the position of the state, on the other hand, would mean condoning a state of affairs where some states bar religious institutions from participating in virtually any program that used state dollars could lead to absurd results, such as a bar for aid for subsidized lunch or breakfast for poor students and other aid programs run by the state. Additionally, adopting the distinction that the attorney for Missouri seized on late in his argument between general benefits such as police protection and specific benefits such as participation in the grant program such as the one at issue in this case would, as several Justices noted, likely lead to a future load of litigation over the specifics of which types of aid counted as “general” and which should be counted as “specific.” This is likely one reason why the idea of declaring the case moot based on the fact that the state has changed its policy under a new Governor may appeal to the Justices since it would allow them to avoid making a decision that would do little but set up a whole new line of lawsuits that would eventually make their way to the Court to demand resolution. If they do choose this final option, then it’s likely that we’ll hear about it relatively quickly. If we don’t then we’re likely not to get a decision in this case until the end of the Court’s term in June.

As I’ve said before, it’s often a mistake to try to guess how a Judge will rule based on oral argument alone. Sometimes, a Judge will ask questions during this process designed to test what seem to be flaws in the argument of one side or another even though they happen to agree with its ultimate conclusion. When dealing with a panel of Judges such as the Supreme Court, they’ll often use oral argument as part of an opening salvo to attempt to convince one of their fellow Judges to join them on one side or another of a particular case. And, sometimes, they’ll just ask questions for the heck of it, or because it’s part of the way that they process their own understanding of the arguments that both sides are making. All that being said, it does appear from the oral argument that most of the Justices are skeptical of the state’s hard-line position that its Constitutional Amendment should be so broadly interpreted as to permit the state to bar a religious school from participating in a program with an entirely secular purpose, in this case making playgrounds safer by using materials that reduce injuries. Where that leads to in terms of a decision is something we’ll have to wait until June to find out.

Here’s the transcript of the oral argument:

Trinity Lutheran Church v. Comer Transcript by Doug Mataconis on Scribd

FILED UNDER: Education, Law and the Courts, Religion, US Politics, , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. MarkedMan says:

    I’m pretty much an absolutist in this area: no funds for religious schools. Period. If they have an unsafe playground, then they should fix it. If they take money from my pocket to pay for it, then they have that much more money to spend on their religious mission, so in the end, taxpayers pay for their religion.

    The Lutherans I’ve known are some of the most decent people I’ve met, but this ruling will apply to Evangelical Christian, Orthodox Jewish and Muslim schools that teach that women are second class beings with inferior rights, or to schools like the one of the first DC Charter schools which taught that white people are evil and where a teacher roughed up a white Washington Post reporter who came to look into those accusations. And it will benefit all those religious schools that teach their children that I am misguided/evil/satanic because I don’t believe as they do.

    If they want taxpayer money for their kid’s playground, send their kids to a public school.

    And I say this as someone who went 12 years to a Catholic school, whose parents sacrificed to ensure this was true for all four of their children, and who actually paid half of my own tuition in my last two years of high school. That was my family’s choice and we did not expect other families to pay for it.

  2. JohnMcC says:

    As I understand it the ‘wall of separation’ as planned by Mr Jefferson and Mr Madison met with agreement from the evangelicals of that era because those churchmen knew that they wouldn’t be the beneficiaries only the donors. They regarded it also as a way for the government to get it’s foot in the door and begin to control the teaching or doctrines of their church.

    So many ways the present so-called ‘conservatives’ would be unrecognizable to their forefathers.

  3. Daryl's other brother Darryl says:

    “It’s a hard issue,” Justice Kagan said. “It’s an issue in which states have their own very longstanding law. It’s an issue on which I guess I’m going to say nobody is completely sure that they have it right.”
    The Missouri Constitution bars spending public money “directly or indirectly, in aid of any church,” and the state Supreme Court has called for “a very high wall between church and state.”
    Thirty-nine states have constitutional provisions limiting state aid to religious groups, Justice Sotomayor noted. “We don’t want, as a country — well, the vast majority of states — to fund houses of worship,” she said.

    Nonsense…we are already funding these houses of delusion by giving them tax exempt status.
    Tell you what…prove to us that an infinitely old, infinitely powerful, omniscient being exists…and you can have all the recycled tires you want.
    Their overwhelming support of a man like Comb-over Donnie proves that they do not believe what they profess to believe.
    Enough of this idiocy.

  4. Gromitt Gunn says:

    For me it comes down to one question: Can the taxpaying public freely use the playground during specific times of the week and without be forced to experience some sort of religious message, the same way that the general public can use public school playgrounds, trails, tennis courts, tracks, etc.?

    If yes, let them apply for the grant money. If not, then nope.

  5. Dave Schuler says:

    As I noted in my own post on this case written in reaction to George Will’s I think misguided column on it, the problem is that money is fungible. If you give religious institutions money for any purpose, it frees up the money that might otherwise be spent for that purpose and that money may be spent for more explicitly religious purposes.

  6. charon says:

    @Dave Schuler:

    the problem is that money is fungible.

    The Christians make that argument when they try to defund Planned Parenthood.

  7. Gustopher says:

    @Gromitt Gunn: I would go a step further — is the community as a whole encouraged to use the playground?

    You can set up all sorts of situations where the public is technically able to use the playground, but is strongly discouraged. Put it behind the church, so it cannot be seen from the street, accessible only through a maze of fences, with doors that are always closed but not locked, etc.

    (Also, I would make a very specific carve out for religious messages — if they have a giant Buddha where his belly is a trampoline, that is acceptable because that would be awesome, but no other religious messages. I might be tempted by something that lets people walk on water, or a crucified Jesus climbing wall. Ok, fine, none of those, but they all would be awesome)

  8. MarkedMan says:


    The Christians make that argument when they try to defund Planned Parenthood.

    This is a good point and worth discussing.

    I would contend the cases are not as similar as they might seem. The reimbursement to Planned Parenthood as a healthcare provider is for specific services at a rate specified by the payers and applicable to any provider for those services. (Overly simplistic, but right enough for this point.) What the religious are arguing is that PP is immoral and as such should not be allowed to be a provider for any services.

    So, if the Lutherans were running a public playground that
    – adhered to all the rules that public playgrounds must adhere to
    – admitted all members of the community
    – the local, state or federal government had elected to provide playground services to the community by paying a fixed rate to third party playgrounds
    Then, yes, the cases would be similar.

  9. Franklin says:

    Side note: Recycled tires used to be classified as toxic waste. Now they’re used for children to play in.

    The EPA had just started to collect these playground tire crumbs in order to analyze their composition. Of course with the current administration, you can expect that investigation to end soon. Because this is the one case where Republicans are FOR recycling (because somebody is making a buck at the expense of children’s health).

  10. Gustopher says:

    @Dave Schuler: At the point you start making the money is fungible argument, you are punishing a person or organization in one area for activity in another area that you disapprove of, even if the disapproved activity has no bearing on how they do the rest of their work. That’s not the job of government, and I would argue that it goes against the spirit of the equal protection clause.

    The government should not be punishing people or organizations for doing things that are legal.

    Religion is a special carve out in the constitution, and I think we are going to far in supporting it (tax breaks for churches, allowing religious hospitals to not provide full health care), but the “money is fungible” argument encourages discrimination and arbitrary enforcement.

  11. KM says:

    To be apart is to be apart. It is a deliberate choice that requires sacrificing somethings that being a part of the group conveys. Private is private and public is public; mixing of the two requires something to give on the standards of one of the groups. Logically, private should yield as they are the smaller of the group and the beneficiary but rarely do they seem to think so. They scream discrimination when really it’s a matter of them wanting to stay separate but get the benefits of the group.

    I too am a beneficiary of Catholic schools and the wonderful education and ethos it instilled. I’m fully aware of how much it cost my parents, how much is cost me in college to keep up that trend and that both my elementary and high schools were forced to close because of financial concerns. It made me depressed to drive by and see the buildings empty but that’s how the market works. If the congregation / religious group associated with it can’t or won’t support it, why should anyone else? You’d be furious if someone held out the public equivalent of the collection basket for a madrassa so don’t dip into it for your needs either. If money’s that important, get a company with a religious bent (looking at you, Hobby Lobby) to support you in exchange for wearing their logo on the uniforms or name on the building. If you are going to sell your soul it might as well be to those in your own faith.

  12. charon says:


    I was pointing out that they make that argument, which is not the same as saying their position is valid – just that it is inconsistent and hypocritical.

    So yeah, you are mostly right. Still, to the extent that compensation for specific services does allocate to overheads like rent and security, they are slightly valid.

  13. Liberal Capitalist says:


    I’m pretty much an absolutist in this area: no funds for religious schools. Period.


    And I say this as someone who went 12 years to a Catholic school…


    People think: “What’s the harm?”, but only think that about their own special little religion.

    Tell them the money needs to go to the Bhai, or Satanists as well, then they suddenly seem opposed to the idea. At least for “those people”…

  14. MarkedMan says:

    For years I lived near an Orthodox Jewish community in upstate NY. My feeling was that the state went way, way too far in accommodating things like publicly funded swimming pools that separated men and women. There were also some ugly incidents over non-Jewish women presuming to sit in the “wrong place” in a publicly funded bus. Every single member of that community deserves buses and swimming pools and public schools just like any other New Yorker. But the moment they expect those public accommodations to enforce their religious restrictions they need to fund them on their own.

  15. CSK says:

    @Liberal Capitalist:

    They’ll tell you the U.S.A. was founded as a “Christian nation” based on “Christian principles.”

  16. Stormy Dragon says:


    The other problem with the “money is fungible” argument is that where do you draw the cutoff? If someone takes publically subsidized subway to church, is that now government support for their religion?

  17. Liberal Capitalist says:


    @Liberal Capitalist:

    They’ll tell you the U.S.A. was founded as a “Christian nation” based on “Christian principles.”

    Which exposes the problems of great propaganda to the poorly educated.

    But that’s a different conversation entirely.

  18. DrDaveT says:

    If the playground in question were the property of a mosque, a Hindu temple, or an orthodox Jewish synagogue, the justices would not hesitate to deny them public funding. That pretty much tells you all you need to know here.

  19. teve tory says:


    Exactly. The ‘money is fungible argument’ is a rare slope that is actually slippery. Imagine if your employer said, “I don’t want to contribute to your health insurance because then it’ll free up money for you to buy hookers and meth.”

  20. Just 'nutha ig'nint cracker says:

    @Stormy Dragon:

    If someone takes publically subsidized subway to church, is that now government support for their religion?

    Doesn’t that depend on 1) which came first, the subway stop or the church, and 2) how far the rider must walk in order to get to the church? In the alternative, was the subway stop built in order to facilitate attending the church or because significant numbers of riders need to exit there anyway?

  21. Just 'nutha ig'nint cracker says:

    @DrDaveT: Do you have a basis for this assertion?

  22. MarkedMan says:

    @Stormy Dragon:

    If someone takes publically subsidized subway to church, is that now government support for their religion?

    Here’s a similar argument from real life. When I lived in Atlanta many years ago there was a state law that said, effectively, zoning laws don’t apply to churches. A mega church was built in a small town nearby. They had a gym and a day care center and a coffee shop, and the “minister” and his wife had lots of expensive cars, expensive clothes, an expensive house and what I assume were very expensive smiles. But the church didn’t pay taxes. They then threatened to sue this small town for not providing adequate public roads and traffic lights which of course would have to be paid for by the ratepayers.

    So, to your question, yes. If a church wants a special subway stop they should pay for it themselves.

  23. KM says:

    @Stormy Dragon:

    If someone takes publically subsidized subway to church, is that now government support for their religion?

    No, because the intended action they are engaging in (travel) isn’t inherently religious despite a religious location being their destination. There’s really no way to prove someone’s on their way to church unless you watch them arrive and walk into the building. Also a bit of a bad example since freedom to travel is an different right that devotees could fall back on to support their argument. On the other hand, the playground can definitely be determined to be meant for a religious facility with said religious owners and the people who pay them being the only ones allowed to use the resulting structure. A child wandering in off the street most likely won’t be able to swing on the those swings – they want private rights to kick in while taking public money, then overlay their religious morals on top of that. The bus is for all paying customers while the playground is for all paying customers *they are willing to accept*. Big difference.

    Look, religion is only in the Bill of Rights because of the history of our country’s settlers. They were persecuted heavily and wanted to know they would live in safety. They wanted no part of the government in their religious lives and frankly would be appalled at their descendants drinking the milk and not buying the cow. Unlike a lot of things Christian nuts disdain, religion is a *choice* that happens to enjoy high legal protections because of historical ugliness. Our country would be *quite* different if they didn’t have the written assurance that their lifestyle choice was automatically higher rated then everyone else’s and the courts would most likely take their side. Them having their hands out for money was NOT was the First Amendment was intended for.

  24. charon says:

    @Just ‘nutha ig’nint cracker:

    I think his assertion is correct, my basis is the experience of living in this country.

  25. MarkedMan says:

    FWIW, most European countries have a state religion and subsidize at least that religion, and usually many others. So the upkeep of many church buildings are paid for by the government, and in some cases the ministers/priests/imam salaries are subsidized. What this has meant in practice is that churches don’t depend on their parishioners for voluntary donations and have become more and more distant from their flock, which dwindles year by year.

    I was in a large and historic Cathedral in the Netherlands once. Magnificent and beautiful, with amazing art and architecture. As we wandered around with the other tourists, I was startled to find a small section roped off with a smattering of people inside. It took me a few moments to realize a mass was taking place. It was Sunday after all.

    That’s where the US religious right is taking their churches, although they can’t see it.

    And on a separate note, whenever I hear someone in the US patting ourselves on the back about how we donate to charity at a higher rate than Europeans, I remind myself that 45% of all donations go to religions (essentially a tax deductible fee for membership in a private club) or donations to universities and other schools, both of which are paid for by taxes in most European countries.

  26. ...Ig'nint... says:

    @charon: If you are really agreeing with Dr. Dave–and by extension making the argument that the highest court in the land is incapable of administering justice and meting it out in an even handed manner, please accept my generation’s apologies. We should have let Eldridge, Huey, and Angela burn the sucker to the ground 50 years ago when we had the potential of building a better nation.

  27. charon says:


    the highest court in the land is incapable of administering justice and meting it out in an even handed manner,

    Hobby Lobby. QED

  28. MarkedMan says:


    Hobby Lobby. QED

    Or Bush-Gore. But the real demonstration of bias is the way the Republican justices regularly twist themselves into knots to ensure the little guy gets screwed.

  29. Moosebreath says:


    Or Shelby County.

  30. DrDaveT says:

    @Just ‘nutha ig’nint cracker:

    Do you have a basis for this assertion?

    Beyond having read various decisions/dissents by Scalia and company, you mean?

  31. DrDaveT says:


    Look, religion is only in the Bill of Rights because of the history of our country’s settlers. They were persecuted heavily and wanted to know they would live in safety. They wanted no part of the government in their religious lives

    Don’t overlook the flip side — that back in England they had all been required to pay the Tithe to support the Church of England, regardless of their personal religious beliefs.

    Also, keep in mind that what many of these groups meant by “religious freedom” was “freedom to establish our own local theocracy and persecute people who don’t agree with us “. The Founding Fathers were aware of that problem.