Another way to put that is: The Supreme Court Looks Poised to Rule That Sometimes Not Discriminating Based on Religion Is More Important Than the Strict Separation of Church and State.
ADDED: The cases is about whether Missouri can exclude religious organizations from an otherwise generally available program to distribute recycled tires for surfacing playgrounds. Missouri is taking a strong no-aid-to-religion approach that entails discriminating based on religion.
Amy Howe analyzes the argument at SCOTUSblog:
[Justice] Sotomayor expressed doubt that the playground could be separated out from the church’s religious work. The playground is part of the ministry of the church, she suggested. Cortman urged the justices to focus on where the money goes; here, he emphasized, the money goes only to the playground resurfacing....More at the link, including courtroom sketches.
Justice Samuel Alito pushed back against the idea that provisions like the state constitutional amendment on which Missouri relied to deny funding to Trinity Lutheran reflect some sort of “honorable historical tradition.” Instead, he asked somewhat rhetorically, aren’t they based on “anti-Catholic bigotry”?...
Citing a variety of federal programs that provide funding that could flow to religious institutions – for example, a Department of Homeland Security program to improve security near high-risk targets like synagogues or mosques and a program to repair buildings damaged by the bombing at the federal building in Oklahoma City – Alito pressed [Missouri's lawyer James] Layton on whether the state’s policy would bar similar programs. Layton held firm, telling Alito that it would because state money cannot be used for religious institutions.
That response prompted Kagan – who during [the argument by the lawyer for Trinity Lutheran Church] had seemed to be leaning toward the state – to ask whether the state’s position would also bar the state from providing police and fire protection to churches. Layton responded that it would not, reasoning that public safety is a service, rather than something for which the state gives funding to a religious group.
Justice Stephen Breyer seemed unconvinced. He first asked Layton whether the U.S. Constitution would allow a state to declare that it wouldn’t provide a church with police or fire protection. When Layton responded that would not, Breyer then moved on to what seemed to him to be the logical next step: How does the Constitution then allow Missouri to deny money for a new playground surface to a daycare center, whose students could face all kinds of potential hazards – ranging from a skinned knee to tetanus and a broken leg – from the older, less safe playground?
Alito seized on what he clearly viewed as a potential weakness in the state’s defense of its policy. How do you distinguish, he asked Layton, between a program that is open to everyone who wants the funding and a program like the playground resurfacing program that awards grants based on purely neutral criteria?...
Kagan... declared that “this is a clear burden on a constitutional right” because religious individuals and groups are barred from competing for an otherwise neutral benefit.
Gorsuch followed up on this line of questioning, asking Layton to explain why excluding religious groups from selective programs would be preferable to excluding them from a general benefit. Layton responded that selective programs tend to have more public visibility than the general ones, and can effectively amount to a government endorsement of the religious group and its mission. But Gorsuch was dubious. How, he asked, do we draw those lines?
It's silly to act as though Gorsuch is the driving force here. This is an issue that has been brewing for a long time, and the problem of discriminating against religion is apparent to liberal as well as conservative Justices.
And it would be possible for a conservative to support the state by taking a strong federalism position. That's what Chief Justice Rehnquist did in Locke v. Davey, the key precedent in this area. In that case, the state of Washington was allowed to deprive a student of a scholarship — which he qualified for with his high school grades — because he majored in devotional theology. Rehnquist wrote:
[W]e find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion. Given the historic and substantial state interest at issue, we therefore cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect.Note the problematic idea that it's okay to discriminate if you're not doing it out of "animus" — negativity toward religion. That's the idea the state's lawyer was trying to use in the oral argument yesterday in talking about the "honorable historical tradition."