Trinity Lutheran v. Comer was decided in June 2017. At the time, Justice Kennedy was still the Court's swing vote, and Justice Gorsuch was the junior justice. And Roberts made a decision. He included Footnote 3 in his opinion:
This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.
Footnote 3 crafted some sort of distinction between "religious identity" and "religious uses." That is, Trinity Lutheran only involved a case where the state excluded an institution because of its religious identity, or status. But the funding would buy tire scraps for a playground, which was not a religious use.
