Earlier this week, the Supreme Court handed down its decision in the case of Trinity Lutheran Church v. Comer, in which a church was denied a state grant for installing a safe surface, made from recycled tires, for its preschool’s playground. In keeping with its state constitution, Missouri normally gives grants to schools that make such improvements so long as they are not affiliated with religious institutions. The court declared this provision, when so applied, to be unlawful religious discrimination. Michael A. Helfand comments:
Some Jewish groups have expressed concerns about [this] opinion, arguing that we are on a slippery slope to the government directly funding religious activity. For example, the CEO of the Anti-Defamation League, Jonathan Greenblatt, issued a press release in which he worried that the court’s opinion represented a “disturbing step back from [the] commitment” to “maintaining the separation between church and state.” And one can understand why the transfer of funds from the government to a church-operated school might serve as a red flag given the importance of keeping some degree of separation between church and state.
But the reality is that an opinion against Trinity Lutheran would have been out of line with our core constitutional commitments animating the relationship between church and state. . . . Missouri’s law, which required that “no money shall ever be taken” from the state and granted “directly or indirectly” to any religious institution, would—if taken at its word—prohibit the government from providing financial support to religious institutions affected by a natural disaster or to provide for increased security in the wake of violent threats, even if such funding were readily available to all other secular institutions. The religious character of an institution cannot be used by the state as a reason to expose its members to unnecessary dangers. . . .
The Supreme Court opinion does not represent a constitutional retreat on principles of separation of church and state. Ultimately, the court’s decision ensures that states continue, in line with the demands of the federal constitution, to withhold government funds from religious activities. But the opinion also makes sure that religious institutions cannot be singled out or excluded because of their religious status and character, especially when citizens need the government’s protection. Excessive exuberance for the separation of church and state cannot be allowed to boil over into religious discrimination.