1. "The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the 'most rigorous' scrutiny."
2. "The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But 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 all the same, and cannot stand."
3. But—there is always a “but” when Chief Justice Roberts writes the Court’s opinion—there is a footnote—footnote 3—in which the Court says (edited from linked opinion):
“This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
So this case deals with these particular facts and no others—it is like a ticket for this train only and this day only. Footnote 3 may be the price Roberts paid to get the 7 to 2 majority.
4. It is also significant to note that Justices Thomas & Gorsuch explicitly refused to join footnote 3. Gorsuch explained that the general thrust of the opinion is inconsistent with any attempt to limit the case to its specific facts because the Court’s decisions should be “governed by general principles, rather than ad hoc improvisations” and “the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”
Do you agree with Gorsuch?
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