In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court held 7-2 that Missouri violated Trinity Lutheran Church’s free exercise of religion rights when it refused, on the basis of religion, to award the church a grant to resurface its playground with recycled tires.

Trinity’s preschool ranked fifth among 44 applicants to receive a grant from Missouri’s Scrap Tire Program. Missouri’s Department of Natural Resources (DNR) informed the preschool it didn’t receive a grant because Missouri’s constitution prohibits public funds from being used “directly or indirectly, in aid of any church, sect, or denomination of religion.” Trinity sued the DNR claiming it violated the church’s First Amendment free exercise of religion rights.

The Supreme Court, in an opinion written by Chief Justice Roberts, sided with the church. As the policy expressly discriminated against otherwise eligible recipients on the basis of religion, the Court reached the “unremarkable” conclusion that it must be able to withstand “the most exacting scrutiny.” It did not because the DNR “offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns.”

In its opinion, the Court notably distinguished this case from Locke v. Davey (2004) where it upheld the constitutionality of a state of Washington scholarship program that excluded students pursuing degrees in devotional theology. “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.”

The breadth of the Court’s ruling and its applicability to other government aid programs is unclear. In the third footnote of the opinion, Chief Justice Roberts joined by Justices Kennedy, Alito, and Kagan agreed that “[t]his 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.” Justice Breyer, concurring, and Justices Sotomayor and Ginsburg, dissenting, presumably agree with this footnote as well.

Justices Sotomayor and Ginsburg wrote that the Court’s opinion in its entirety “profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” And Justice Breyer, noting that the public benefit at issue was a program to improve the safety of children on a playground, opined that he “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.”