Does the Constitution compel state and local governments to subsidize religion? That question might seem preposterous, since the First Amendment's Establishment Clause prohibits the government from funding religious exercise and limits its ability to fund religious facilities. Yet in 2017, the U.S. Supreme Court flipped the First Amendment on its head by ruling, for the first time ever, that the Constitution sometimes requires the government to provide public funds directly to a church. Its decision in Trinity Lutheran v. Comer blew a chunk out of the wall between church and state. And on Monday, Justice Brett Kavanaugh announced his intention to demolish the remainder of that wall by invalidating laws that bar government subsidization of religion.
In fairness to Kavanaugh, this Supreme Court was already hostile to the Establishment Clause before he joined. That much was clear from its Trinity Lutheran decision, an assault on religious freedom that masqueraded as a defense of religious equality. The case involved a Missouri church, Trinity Lutheran, that sought state funds to resurface a playground used for its day care and preschool programs. Missouri rejected its bid due to a provision of the state constitution that bars the use of taxpayer money "in aid of any church, sect, or denomination of religion." Trinity Lutheran sued, alleging a violation of its rights under the First Amendment's Free Exercise Clause. By discriminating on the basis of its religious identity, the church argued, Missouri had infringed upon its free exercise of religion.