Free Exercise and Comer: Robust Entrenchment or Simply More of a Muddle?

Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amendments are per se unconstitutional.

The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of complexity and confusion to an already muddled jurisprudence. That decision, unless modified, could have surprising implications that the Court is avowedly unwilling to endorse.