Bench Memos

Law & the Courts

Today’s Big Victory for Religious Liberty

In Trinity Lutheran Church v. Comer, the Supreme Court ruled today that the state of Missouri violated the Free Exercise rights of a church when it excluded religious organizations from taking part in a program of grants for playground resurfacing. As Chief Justice Roberts summed things up near the end of his majority opinion for six justices, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

Contradicting early predictions of a ruling sharply divided on ideological grounds, Justice Kagan joined the Chief’s opinion in full, and Justice Breyer wrote an opinion concurring in the judgment. Breyer “agree[s] with much of what the Court says” but (consistent with his general approach) is reluctant to sign on to any broad principle.

Only Justices Sotomayor and Ginsburg dissented. Remarkably, they opined that the Establishment Clause is violated by allowing Trinity Lutheran to take part in the grant program (an argument that the state itself rejected). They also would have held that the Free Exercise Clause allowed Missouri’s exclusion of churches from the grant program.


(Justices Thomas and Gorsuch declined to join one footnote in the Chief’s opinion that they said was “entirely correct” but that they feared “some might mistakenly read” to refuse to apply the “legal rules recounted in and faithfully applied by the Court’s opinion.”)