The U.S. Supreme Court on June 26 decided Trinity Lutheran v. Comer. The case is widely viewed as having implications for publicly-funded private school voucher programs.

Trinity Lutheran Church operated a preschool and daycare center in Missouri.  The daycare center applied for a grant given out by the state’s Department of Natural Resources that provided nonprofit organizations with playground surfaces made from recycled tires. The department denied Trinity Lutheran’s grant application, even though the applicant was otherwise highly qualified, based on the fact that it was a church. The department’s policy of not allowing grants to be given to churches was based on its understanding of Article 1, Section 7 of the Missouri Constitution, which provides that ““no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

In a 7-2 decision, with Justices Sotomayor and Ginsburg dissenting, the court overturned lower court decisions and struck down the state policy, holding that the policy violated Trinity Lutheran’s rights under the Free Exercise clause of the First Amendment of the United States Constitution.

The court’s rationale could be read to call into question prohibitions on generally-available voucher money being used for religiously-affiliated schools. The majority sought to sidestep the issue of broader applicability with a footnote, however. In footnote 3, the court stated that the decision was specifically limited to “express discrimination based on religious identity with respect to playground resurfacing,” and stated “we do not address religious uses of funding or other forms of discrimination.”

Justices Gorsuch and Thomas, who were among the majority on the initial vote, did not support the footnote requiring the narrow reading of the decision. The vote on the footnote was 5-4.

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