Supreme Court chooses free exercise over anti-establishment today; does status-use distinction remain viable?

The U.S. Supreme Court ruled this morning in favor of the church in the religious freedom case about public subsidy of playground surfacing materials.  The Court held that Trinity Lutheran (Mo.) could not be excluded from the program to provide recycled tire rubber only because it is a church. 

There is some strong religious freedom language in the majority opinion.  From The Washington Post: <<Chief Justice John G. Roberts Jr., who authored the opinion, wrote, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”>>

The vote was 7-2 with Justices Ginsburg and Sotomayor in dissent. 

The majority found the case rather easy, because Trinity Lutheran was excluded from a public program only because of its status as a church.  A discrimination on that basis alone can be supported only under the most exacting scrutiny, which Missouri could manage.  The Court left open the possibility that government discrimination against a church might be permissible, upon a much lesser burden, if a public benefit were to be converted to a religious use.

Justice Gorsuch

I point this out--and mention the case at all, as much more able commentators will opine in droves in the hours and days to come--only to highlight an intriguing (and telling?) paragraph in a separate opinion by new Justice Gorsuch, concurring, joined by Justice Thomas (citations omitted):

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him)....

I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.

In contrast, in another concurring opinion, Justice Breyer would have sharply limited the case to its facts.

The full decision and opinions in Trinity Lutheran Church of Columbia, Inc., v. Comer (no, not Comey, but a Missouri official, Comer) are available online.