Normally, the most notable part of a Supreme Court decision is not the dissent.
But Monday, Justice Sonia Sotomayor penned a dissent that is much more interesting in its transparency than the relatively mild majority opinion written by Chief Justice John Roberts in a case being watched by everyone interested in the tension between church and state, and the status of that crumbling wall.
In Trinity Lutheran Church of Columbia v. Comer, a seven-person majority held that the state of Missouri could not single out faith-based organizations for exclusion from grants that would have paid for property maintenance. The facts are fairly simple. Trinity Lutheran is a church that also ran a preschool program. In 2012, it applied for a grant from a state program to make playgrounds safer. It’s request for funds to resurface its playground was denied based on a state constitutional provision that forbade the use of taxpayer funding to religious institutions.
That provision was modeled on what is known as the “Blaine Amendment,” a proposed amendment to the U.S. Constitution based in an antipathy toward Catholics. Over a century ago, in the wake of the Civil War, a Republican congressman named James Blaine proposed the amendment to prevent, in part, public money going to parochial schools that were filled with immigrant children.
Many states adopted the language of the original federal amendment, even though it had failed to muster a two-thirds majority in the Senate. Some of these “mini-Blaines” are still on the books.
Which brings us to Missouri.
Trinity Lutheran sued the state, claiming that the only reason it was being denied funding was because it was a…
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