The case is Trinity Lutheran Church of Columbia v. Comer, decided on June 26. Missouri allocated money to public and private schools and other entities to help buy rubber playground surfaces made from recycled tires. But since Trinity is a church, it was not eligible for this money. Writing for the Court, Chief Justice Roberts says the Free Exercise Clause protects religious observers against unequal treatment. As the majority interprets Supreme Court authority on this issue, Roberts says "The Department's policy expressly discriminates against otherwise eligible recipients by disqualifying them form a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."
Supreme Court authority can be interpreted any way the Justices want to interpret it. Since this case was not decided unanimously, two Justices see it differently, Justices Sotomayor and Ginsburg. Sotomayor opens her dissent like this:
To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.Citing established precedent, the dissent writes that "the government may not directly fund religious exercise," and that "nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship." Like this church. While the Court has sometimes found some direct government funding of religious institutions is consistent with the Establishment Clause, "the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. The Church has not and cannot provide such assurances here." But this case involves a playground, not religious classes, right? Not so fast, Sotomayor writes. The plurality in a prior case implicitly agreed that public money cannot be used for religious activity, and that it would not "supplant non-program funds," that no money would "ever reach the coffers of religious schools" and that the program had adequate safeguards to police violations.
The Court resolved this case even though the State of Missouri had issued a directive in 2017 allowing religious organizations to compete for and receive government grants on the same terms as secular organizations. Would this not moot out the case? No, says the majority. "We have said that such voluntary cessation of a challenged practice does not moot a case unless 'subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' The Department has not carried the 'heavy burden' of making 'absolutely clear' that it could not revert to its policy of excluding religious organizations. The parties agree." Yet, the governor did issue a directive. How likely is it that the directive will be overturned? And though the parties agree this case is not moot, is that not a self-serving position so the parties may have this case resolved by the Supreme Court? As I see it, the Second Circuit employs a more stringent test governing voluntary mootness. If you care about this issue, see then-Judge Sotomayor's analysis in Lamar Advert. of Penn., LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004).
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