The issue in Trinity Lutheran is not whether, under the Establishment Clause, government may include religious ministries and persons under neutral programs involving government subsidies. That is clear:
Remember Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:
"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."
Now the issue is whether, under the Free Exercise Clause, government must include religious ministries and persons.
If Missouri adopts an otherwise generally available program awarding grants to nonprofit daycare centers to pay for playground safety upgrades, must Missouri include religious daycare nonprofits under the Free Exercise Clause? Is a program that explicitly excludes religious daycare centers neutral and generally applicable under Smith and Lukumi? If not, does Missouri demonstrate a compelling state interest and least restrictive means to justify the religious exclusion under Lukumi toothy strict scrutiny?
Why did Missouri decide to exclude religious nonprofits from the playground grant program?
Is this reason compellingly important?
Even if it is, is there a less restrictive means of advancing the state's interest?
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