Michael Q. McShane

The U.S. Supreme Court heard oral arguments in Trinity Lutheran v. Comer yesterday. We’ve covered this case extensively, and even though on April 13 the governor reversed the policy that sparked the case, arguments went forward as planned.

It is usually ill-advised to try to divine the ultimate outcome from oral arguments, but it was hard not to see a majority of the justices making arguments and asking questions favorable to Trinity.

Justice Kagan, in particular, seemed to articulate a position in favor of Trinity multiple times. First, she remarked:

But here’s the thing. There’s a constitutional principle. It’s as strong as any constitutional principle that there is, that when we have a program of funding—and here we’re funding playground surfaces—that everybody is entitled to—to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things. And I would have thought that that’s a pretty strong principle in our constitutional law.

Later, she even went further, responding to the state’s attorney’s argument that reimbursing Trinity would amount to an endorsement of or entanglement with the school:

I don’t mean to say that those are not valid interests. But it does seem as though this is a clear burden—looked at that way, this is a clear burden on a constitutional right. And then your interests have to rise to an extremely high level.

She continued,

It’s a burden on a constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit.

These statements, along with tough lines of questioning to the attorney representing the state from Justices Alito, Breyer, Gorsuch, Kennedy, and Chief Justice Roberts, showed just how difficult it might be for the state to show that reimbursing a religious preschool for scrap tires for their playground would excessively entangle it with a religion. If that is excessive entanglement, several justices pointed out, just about anything that the state would do, from providing police and fire protection to administering public health programs to students, would be illegal in Missouri.

Again, we don’t want to read too much into yesterday’s arguments, but the questions were encouraging. We will know the ultimate opinion of the court by the time it recesses at the end of June.

About the Author

Michael McShane
Senior Fellow of Education Policy

Mike McShane is Senior Fellow of Education Policy for the Show-Me Institute. He is a former high school teacher and earned his PhD in Education Policy at the University of Arkansas. Before coming to the Show-Me Institute, Mike worked at the American Enterprise Institute as a research fellow.