Justice Sotomayor and her troubling Trinity Lutheran Dissent

Supreme Court Justice Sonia Sotomayor is widely regarded in circles as the Supreme Court Justice that only rivals Ruth Bader Ginsburg in her consistent adherence to liberal  principles on the bench. Last post we discussed swing-vote Justice Anthony Kennedy and his history in regards to cases with religious freedom.  Here, we will dissect  some points in Sotomayor’s dissent in Trinity Lutheran, a recent religious freedom case, and the danger it poses to interpretation of religious freedom and the role of religion in jurisprudence.

The Supreme Court assessed in Trinity Lutheran if a private Missouri faith-based school was entitled to receive state funding through grants to provide safety playground tire on its playground.  The Court ultimately found in a 7-2 vote that the failure to provide state funding to the faith-based school like the non-religious private schools violated the Free Exercise Clause.

In Sotomayor’s dissent, she stated the Court’s “decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

[1]Her history assessment can be the subject of much debate. As discussed in Professor Philip Hamburger’s book, “Separation of Church and State”[2] it is not a strong argument that the strict separation we consider in the modern day corresponds with our past. He points out in his book that the early Protestant communities in the United States found merit in the influence of religion in society as evident in their dedication to prayer in public forums such as appointment of chaplains[3], Protestant instruction and Bible reading as a core value in public schools[4] and local laws with respect to Sunday as the Lord’s day[5] among other influences. The main critiques of religion arose when the appropriate role of ministers in the community was considered with respect to political influence[6] and the emergence of Catholics who they found posed a threat to the society with proximity to the Pope[7].

Sotomayor ignores this in her dissent. By taking such a strong stance against religion and its influence in our society today, she is in essence denying a major component of the DNA of this nation and the principles it was founded upon.

In terms of precedent, she is correct in considering that the Supreme Court has been the chief enforcer of modern separation commentary. Major cases include Everson v. Board of Education[8] with the “Wall of Separation” constructed as a fundamental principle in interpreting the religious clauses and Engel v. Vitale[9] where prayer in public school was prohibited.

The merits of these cases, however, can be debated. If one wants to consider legal precedent these are persuasive cases, however, they reached a conclusion contrary to the founding principles of this nation. A case can be wrong the day it was decided and the Court should not be bound to follow it, but rather consider overturning if a case is heard with similar facts.

If Sotomayor took a closer look at the history of the nation, the view of religion in society predates these cases and should have been a persuasive consideration when adjudicating this case. However, assuming we concede the point and follow her reasoning that the precedent of separation should be maintained, she still does not persuade with her very drawn-out argument concerning the playground and “spiritual growth” of the students.

She states:

“The Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.[10]

According to the mission statement, it is true that the Church considered the learning facility in the general sense to assist in spiritual growth of students, however the playground itself should not be categorized as a specific instrument for spiritual advancement. Sotomayor errs by equating the wall of a Sunday school and church pews to a premises of recreational activity. The playground surface could be constituted as part of a program that encourages spiritual growth, but it cannot hold this connotation on its own.

It further complicates her assessment if we consider facts in which the church rents out the playground for events to parishioners for non-religious activity or to unaffiliated individuals and groups. The premises would then be serving a wholly secular purpose.

Overall, Sonia Sotomayor’s dissent in Trinity Lutheran is very troubling to Constitutionalists that respect the text and original intent of the religious clauses embedded in the First Amendment. If the courts adopted her extended reasoning in this case and continue to hold the older religious cases in high esteem that began the separation commentary, religious freedom adjudication may further find itself in turmoil.

The outcome of this case was a positive development for this area of law, but no thanks to Justice Sotomayor.  Hopefully, if more of these cases come about, the Supreme Court can start to scale back the disastrous precedent that has been ever so persuasive on the jurisprudence of Justice Sotomayor and has denied the very fabric upon which our nation was built.




[1] 137 S. Ct. 2012, 2027 (2017).

[2] Philip Hamburger, Separation of Church and State (2002).

[3]  Id at 12-13.

[4] Id. at 220.

[5] Id. at 200

[6] Id. at 24, 112.

[7] Id. at 10.

[8] 330 U.S. 855.

[9] 370 U.S. 421.

[10] 137 S. Ct. 2012,  2029.


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