Church Playground Case Is a Constitutional Seesaw

Supreme Court Justice Neil Gorsuch waited until almost the end of Wednesday’s oral argument in the major church-state case of Trinity Lutheran Church v. Comer to make his voice heard. But his comments seemed to foreshadow his vote, which he will likely cast in favor of the church that wants to use a state grant to resurface its playground despite a Missouri constitutional provision banning state aid to religious organizations.

Gorsuch’s vote, however, may matter less than that of his old boss, Justice Anthony Kennedy, who seemed not to have made up his mind. That could be a good thing. Kennedy has in the past taken the view that the First Amendment’s establishment clause is only violated when the government has engaged in coercive behavior. If he extends that view to the free exercise clause, and similarly requires coercion here, he might conclude that the Missouri Constitution doesn’t violate the U.S. Constitution -- which would be the right outcome.