How much damage did Trinity Lutheran do to the separation of church and state? The New Mexico Supreme Court assesses.

Does the U.S. Constitution require states to subsidize religious private schools? For decades, the answer has been an unambiguous no; indeed, the Supreme Court has held that, to the contrary, the Constitution prohibits government subsidies for religious organizations. Last June, however, Chief Justice John Roberts turned that rule on its headwith his opinion in Trinity Lutheran v. Comer, which for the first time held that the Constitution sometimes compels states to provide public funds directly to a house of worship. Roberts’ decision feigned modesty, but it also seemed to open the door to the possibility of mandatory government funding of religious education.

On Monday, the New Mexico Supreme Court grappled with the ramifications of Trinity Lutheran in Moses v. RuszkowskiMoses boils down to largely the same question asked by Lutheran: Can a state deny government benefits to sectarian schools because of their religious character without violating the First Amendment? Under Trinity Lutheran, at least, it appears that they cannot. This compulsory entanglement of church and state illustrates just how dramatically Roberts has undermined the constitutional separation of church and state.

In many ways, Moses is a perfect sequel to Trinity Lutheran, because it should clarify the radical scope of Roberts’ ostensibly narrow opinion. Trinity Lutheran revolved around a Missouri church’s “Learning Center,” which is used “to teach the Gospel to children.” The center includes a playground, and in 2012, the church applied for a grant from the state to cover the cost of playground resurfacing. The grant program helped nonprofit entities buy rubber playground surfaces made from recycled tires. Missouri rejected the church’s application, citing a provision of the state constitution that forbids the use of public funds “in aid of any church, sect or denomination of religion.” Trinity Lutheran sued, alleging that Missouri had violated its rights under the First Amendment’s Free Exercise Clause. The Supreme Court ruled in its favor, holding that a state may not deny a “public benefit” to religious institutions “solely because of their religious character.”

As Justice Sonia Sotomayor explained in a dissent, this conclusion veers so far off course that it collides with a different constitutional provision: the Establishment Clause. The Supreme Court has long interpreted the Establishment Clause, which bars the government from “respecting an establishment of religion,” to proscribe the government from funding the exercise of religion. Roberts wriggled around this rule by insisting that the Missouri grant merely subsidized a playground, not religion itself, and thus funded strictly secular activities. But Sotomayor deftly dispensed with this fiction. “The Church has a religious mission, one that it pursues through the Learning Center,” she wrote. “The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.”

At the end of her dissent, Sotomayor warned that Roberts’ decision would quickly spread to cases that dealt with more than just playgrounds. She was quite right. The very next day, the court vacated two lower court decisions: one ruling from the Colorado Supreme Court holding that the state constitution barred a school district from funding vouchers for religious schools, and another from the New Mexico Supreme Court holding that the state constitution barred the legislature from funding (secular) textbooks for religious schools. SCOTUS directed both courts to reconsider these rulings “in light of” Trinity Lutheran.

Read the full story at Slate