Supreme Court Watch: Public Funds and Religion
John Christie • March 17, 2020
Three years ago, the Supreme Court considered the question of whether the First Amendment allows a state to deny public benefits to a religious organization in Trinity Lutheran Church v Comer. Trinity Lutheran operated a pre-school and day care center on the church’s grounds in Boone County, Mo. The church applied for a grant from a state program that used old tires destined for landfills by turning them into a safer pour-in-place surface for playgrounds. Eligible non-profit organizations that purchased these playground surfaces could receive a reimbursement grant from the state. However, the Trinity Lutheran was deemed ineligible for the grant from the state based upon a clause in the Missouri Constitution that said that “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church . . ..”
In an opinion written by Chief Justice John Roberts, a seven-justice majority held that the free exercise clause of the First Amendment protects religious observers against unequal treatment in the disbursement of public funds. “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, and cannot stand.” Justice Sotomayor, joined by Justice Ginsberg, dissented, asserting that using public funds to pay for improvements to the facilities a church uses to practice and spread its religious views would cross the line drawn by the establishment clause of the First Amendment.
However, although some of the language in the majority opinion would appear to have established a broad principle, the opinion expressly limited the holding in the case to discrimination based upon religious identity with respect to playground resurfacing. “We do not address religious uses of funding or other forms of discrimination,” said the Chief Justice. In a separate concurring opinion, Justice Gorsuch, joined by Justice Thomas, refused to join in the majority’s qualification because it suggested that only “playground resurfacing” cases, or only cases involving some association with children’s safety or health, were governed by the Court’s opinion. In his own separate concurring opinion, Justice Breyer cautioned that public benefits come “in many shapes and sizes” and declined to say whether “other kinds of public benefits” might be subject to the same anti-discrimination principle.
In the present term in a closely-watched case pending, the Court has another opportunity to consider the underlying issue in a different context in Espinoza v. Montana Department of Revenue. In 2015, the Montana legislature established a program providing a dollar-for-dollar tax credit of up to $150 for individuals and businesses who donate to certain private scholarship organizations. Those scholarship organizations then used the donated money to provide scholarships for students who wanted to attend private schools — which, in Montana, are overwhelmingly religious. Shortly after the program was enacted, however, the Montana Department of Revenue announced that families could not use the scholarships at religious schools because Montana, like Missouri, has a “no-aid clause” in its constitution, prohibiting aid to “sectarian schools.”
Parents of students attending one of those private schools challenged the Department’s ruling in court, claiming that it unconstitutionally discriminated against them by excluding religious schools from the tax-credit program. Recognizing the clear conflict with the state’s “no-aid” provision, the Montana Supreme Court struck down the entire program, abolishing public tax-credit funding for all private schools in the state, whether religious or not.
The case was argued before the U.S. Supreme Court on January 22. Several Justices appeared to have concluded that Trinity Lutheran broadly applied to prevent the state from withholding funds from religious schools even when used for a religious education purpose. Other justices distinguished Trinity Lutheran as having involved a “completely secular benefit” and raised the question of whether there was in fact any religious discrimination here at all, inasmuch as the Montana Supreme Court had ended all state funding of private schools whether religious or not. At least two Justices expressed concern about the broader implications of a ruling for the parents — specifically, whether it might negatively affect government funding for public schools.
As is often the case, by the end of the oral argument the result was difficult to predict. But because public funding of religious education is on the face of it far different than public funding of playground surfacing, the broad consensus achieved in Trinity Lutheran will not be likely in this case. The impact of the ultimate result may be much more significant. A decision is expected by the end of June.
John Christie
was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Common Sense for the Eastern Shore
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
Apparently, some people think that the GOP’s “big beautiful bill” is a foregone conclusion, and that the struggle over the budget and Trump’s agenda is over and done. Not true. On Sunday night, the bill — given the alternate name “Big Bad Bullsh*t Bill” by the Democratic Women’s Caucus — was voted out of the House Budget Committee. The GOP plan is to pass this legislation in the House before Memorial Day. But that’s not the end of it. As Jessica Craven explained in her Chop Wood Carry Water column: “Remember, we have at least six weeks left in this process. The bill has to: Pass the House, Then head to the Senate where it will likely be rewritten almost completely, Then be passed there, Then be brought back to the House for reconciliation, And then, if the House changes that version at all, Go back to the Senate for another vote.” She adds, “Every step of that process is a place for us to kill it.” The bill is over a thousand pages long, and the American people will not get a chance to read it until it has passed the House. But, thanks to 5Calls , we know it includes:
Let's talk about our Eastern Shore Delegation, the representatives who are supposed to fight for our nine Shore counties in Annapolis, and what they actually got up to this session.
For the first time in recent memory, Virginia Democrats have candidates running in all 100 House of Delegates districts — a milestone party leaders and grassroots organizers say reflects rising momentum as President Donald Trump’s second term continues to galvanize opposition.
The 447th legislative session of the Maryland General Assembly adjourned on April 8. This End of Session Report highlights the work Shore Progress has done to fight for working families and bring real results home to the Shore. Over the 90-day session, lawmakers debated 1,901 bills and passed 878 into law. Shore Progress and members supported legislation that delivers for the Eastern Shore, protecting our environment, expanding access to housing and healthcare, strengthening workers’ rights, and more. Shore Progress Supported Legislation By The Numbers: Over 60 pieces of our backed legislation were passed. Another 15 passed in one Chamber but not the other. Legislation details are below, past the budget section. The 2026 Maryland State Budget How We Got Here: Maryland’s budget problems didn’t start overnight. They began under Governor Larry Hogan. Governor Hogan expanded the state budget yearly but blocked the legislature from moving money around or making common-sense changes. Instead of fixing the structural issues, Hogan used federal covid relief funds to hide the cracks and drained our state’s savings from $5.5 billion to $2.3 billion to boost his image before leaving office. How Trump/Musk Made It Worse: Maryland is facing a new fiscal crisis driven by the Trump–Musk administration, whose trade wars, tariff policies, and deep federal cuts have hit us harder than most, costing the state over 30,000 jobs, shuttering offices, and erasing promised investments. A University of Maryland study estimates Trump’s tariffs alone could cost us $2 billion, and those federal cuts have already added $300 million to our budget deficit. Covid aid gave us a short-term boost and even created a fake surplus under Hogan, but that money is gone, while housing, healthcare, and college prices keep rising. The Trump–Musk White House is only making things worse by slashing funding, gutting services, and eliminating research that Marylanders rely on. How The State Budget Fixes These Issues: This year, Maryland faced a $3 billion budget gap, and the General Assembly fixed it with a smart mix of cuts and fair new revenue, while protecting working families, schools, and health care. The 2025 Budget cuts $1.9 billion ($400 million less than last year) without gutting services people rely on. The General Assembly raised $1.2 billion in fair new revenue, mostly from the wealthiest Marylanders. The Budget ended with a $350 million surplus, plus $2.4 billion saved in the Rainy Day Fund (more than 9% of general fund revenue), which came in $7 million above what the Spending Affordability Committee called for. The budget protects funding for our schools, health care, transit, and public workers. The budget delivers real wins: $800 million more annually for transit and infrastructure, plus $500 million for long-term transportation needs. It invests $9.7 billion in public schools and boosts local education aid by $572.5 million, a 7% increase. If current revenue trends hold, no new taxes will be needed next session. Even better, 94% of Marylanders will see a tax cut or no change, while only the wealthiest 5% will finally pay their fair share. The tax system is smarter now. We’re: Taxing IT and data services like Texas and D.C. do; Raising taxes on cannabis and sports betting, not groceries or medicine; and Letting counties adjust income taxes. The budget also restores critical funding: $122 million for teacher planning $15 million for cancer research $11 million for crime victims $7 million for local business zones, and Continued support for public TV, the arts, and BCCC The budget invests in People with disabilities, with $181 million in services Growing private-sector jobs with $139 million in funding, including $27.5 million for quantum tech, $16 million for the Sunny Day Fund, and $10 million for infrastructure loans. Health care is protected for 1.5 million Marylanders, with $15.6 billion for Medicaid and higher provider pay. Public safety is getting a boost too, with $60 million for victim services, $5.5 million for juvenile services, and $5 million for parole and probation staffing. This budget also tackles climate change with $100 million for clean energy and solar projects, and $200 million in potential ratepayer relief. Public workers get a well-deserved raise, with $200 million in salary increases, including a 1% COLA and ~2.5% raises for union workers. The ultra-wealthy will finally chip in to pay for it: People earning over $750,000 will pay more, Millionaires will pay 6.5%, and Capital gains over $350,000 get a 2% surcharge. Deductions are capped for high earners, but working families can still deduct student loans, medical debt, and donations. This budget is bold, fair, and built to last. That’s why Shore Progress proudly supports it. Click on the arrows below for details in each section.
