Trinity Lutheran Church of Columbia v. Comer: Religious Status, Public Benefits, and the Free Exercise Clause

Trinity Lutheran Church of Columbia v. Comer was a 2017 Supreme Court case holding that Missouri violated the First Amendment’s Free Exercise Clause by excluding a church from an otherwise generally available public grant program solely because of its religious status. The grant supported the purchase of recycled tires for playground resurfacing, and the Court concluded that denying the benefit on religious-identity grounds imposed an unconstitutional penalty on the church’s exercise of religion.

The Supreme Court reversed and remanded the judgment by a vote of 7-2 on June 26, 2017. Chief Justice John Roberts delivered the opinion of the Court, except as to Footnote 3. Justices Kennedy, Alito, and Kagan joined that opinion in full, while Justices Thomas and Gorsuch joined it except as to Footnote 3. Justice Breyer concurred in the judgment, and Justice Sotomayor filed a dissenting opinion joined by Justice Ginsburg.

Basic facts of the case

The facts in Trinity Lutheran v. Comer were undisputed: The Missouri Department of Natural Resources has a grant program that provides funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity Lutheran Church operates a preschool/daycare center called The Learning Center. Trinity applied for the grant to redo the preschool playground, and was denied on the grounds that Article I Section 7 of the Missouri Constitution states that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section, or denomination of religion.”

In an effort to reduce the number of used rubber tires that end up in landfills and dump sites, the State of Missouri, through the State’s Department of Natural Resources (Department), introduced the Scrap Tire Program. The Program offers reimbursement grants to nonprofit organizations that purchase playground surfaces made from recycled tires.

The Department awards grants on a competitive basis to those applicants that score highest on a selection of criteria including population poverty level and the applicant’s plan to promote recycling. In 2012, the Trinity Lutheran Church Child Learning Center applied to participate in the Scrap Tire Program to attain funds to replace a large portion of the surface beneath a playground that is part of the Center’s facilities.

Despite ranking fifth among forty-four applicants, the Department rejected the Learning Center’s application. Because the Learning Center was operated by the Trinity Lutheran Church, it was deemed categorically ineligible to receive such a grant pursuant to Article I, Section 7 of the Missouri Constitution, which purported to deny such financial assistance directly to a church.

Legal and procedural background

In response to this categorical denial, Trinity Lutheran filed suit against the Department, alleging the failure to approve its application based on its religious affiliation violated the First Amendment’s Free Exercise Clause. Trinity Lutheran asked for a declaratory judgment and injunctive relief that would prevent the Department from discriminating against the Church in future grant applications on the basis of its religious affiliation.

Finding the present case “nearly indistinguishable” from Locke v. Davey, the District Court held that Free Exercise “does not prohibit withholding an affirmative benefit on account of religion[,]” and thus did not require the State to make funds like those provided by the Scrap Tire Program available to a religious institution like the Trinity Lutheran Church.

Echoing Locke’s principle that there is “play in the joints” between the First Amendment’s Religion Clauses, the Eighth Circuit affirmed. It recognized that while Missouri could award a grant to Trinity Lutheran without infringing on the Establishment Clause, Free Exercise did not compel Missouri to ignore the antiestablishment principle reflected in its constitution.

What the Supreme Court held

In a 7-2 opinion authored by Chief Justice Roberts, the Supreme Court reversed, applying what it considered to be the basic principle that “[t]he Free Exercise Clause ‘protect[s] religious observers against unequal treatment,’” to conclude that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”

The Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Missouri’s policy was ultimately found to be unconstitutional, with the majority opinion declaring the policy of disqualification “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character” and is therefore a violation of the Free Exercise Clause of the First Amendment.

Judgment: Reversed and remanded, 7-2.

The Court’s reasoning

In reaching this conclusion, the Court relied primarily on McDaniel v. Paty, which “struck down under the Free Exercise Clause a Tennessee statute disqualifying ministers from serving as delegates to the State’s constitutional convention.”

Because the statute at issue in McDaniel meant that “McDaniel could not seek to participate in the convention while also maintaining his role as a minister,” the law impermissibly infringed on McDaniel’s constitutional liberties.

In the view of Chief Justice Roberts, the Department’s policy disqualifying Trinity Lutheran from a public benefit only on account of Trinity’s “religious status,” was “[l]ike the disqualification statute in McDaniel” in that it “put[] Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”

But the “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” And “the Free Exercise Clause protects against ‘indirect coercion or penalties on the free exercise of religion.’”

The dispute over what the case was really about

What makes the decision in Trinity Lutheran so interesting is that while the facts were really clear, the justices seemed generally unable to agree on what exactly the case was about or how to frame it.

• Was it about making sure religious school children have access to the same health and safety benefits, like safer playgrounds, as children at other schools?
• Or was it about a church being denied funding for a specific and fully secular playground program simply because of their status?
• Was it the slightly broader story of a religious group being denied a benefit just because they are religious?
• Or was it the government being asked to directly fund religious activity, which is constitutionally inappropriate?

Justice Breyer presented the case as involving equal access to health and safety benefits for children in religious and secular schools. Chief Justice Roberts, with Justices Kennedy, Alito, and Kagan joining in full, treated the case as involving the denial of funding for a fully secular playground program solely because the applicant was religious.

Justices Thomas and Gorsuch joined Roberts in all but one narrowing footnote and treated the case as part of the broader principle that a religious group cannot be denied a benefit merely because it is religious. Justices Sotomayor and Ginsburg viewed the case as involving government funding of religious activity, which they regarded as constitutionally inappropriate.

Three of those questions have fairly easy answers: Children in religious schools should have the same safety benefits as children in secular schools; you cannot deny funding for a fully secular playground program just because of the religious status of the owners; and no, the government should not directly fund religious activity.

The disagreement between the majority and dissents was partly on the question whether or not this was really fully secular or somewhat religious in nature. A majority of the Justices, seven, in fact, was comfortable saying that there was no direct funding of any religious activity going on in this case.

The status-use distinction and Locke v. Davey

In reaching his conclusion, Chief Justice Roberts had one further job in front of him: distinguishing the Locke decision that had formed the basis of the lower courts’ decisions and that the Department had argued controlled the outcome of the case.

Locke had upheld, against a Free Exercise challenge, a provision of the Washington Constitution similar to the Missouri provision at issue in the instant case that had been applied to prohibit a state scholarship recipient from applying the scholarship funds to pursue a devotional theology degree.

In so doing, Locke had established a “play in the joints” principle. There were some state actions that were not prohibited by the Establishment Clause, but neither were they required by the Free Exercise Clause.

Applying Locke, the Department argued, and the District Court and Eighth Circuit held, that Missouri could allow churches to participate in the Scrap Tire Program, but was not required to.

To distinguish Locke, Roberts derived a status-use distinction between Locke and the case before him. According to the Chief Justice, “[the respondent in Locke] was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do-use the funds to prepare for the ministry.” In contrast, “[h]ere there is no question that Trinity Lutheran was denied a grant simply because of what it is-a church.”

Similar to the facts in Trinity Lutheran, Locke involved the provision of a selective public benefit to a limited number of recipients. High-achieving students could be awarded funds to pursue post-secondary education as part of the Promise Scholarship Program.

Among other eligibility requirements, however, a student could “not pursue a degree in theology . while receiving the scholarship,” though was free to study at accredited religiously affiliated universities. The statute did not expressly define what a degree in theology meant. But it was acknowledged by the parties and by the Court that the statute simply purported to codify the State’s constitutional prohibition on providing public money to support or further religious instruction.

Chief Justice Roberts’s distinction was that Locke concerned the proposed religious use of funds, while Trinity Lutheran concerned the religious status of the organization seeking a generally available secular benefit.

Why the majority relied on McDaniel v. Paty

In Trinity Lutheran’s view, the exclusion operated in the same way as laws that make religious observance conditional on surrendering participation in ordinary public programs. The majority therefore treated the Missouri policy as a penalty on religious exercise rather than as an ordinary limitation on eligibility.

Because the policy applied categorically to organizations controlled by churches, the Department did not evaluate whether Trinity Lutheran’s proposed playground resurfacing activity was religious. The exclusion followed from the identity of the applicant.

The majority’s reasoning focused on the difference between a program that excludes a religious activity and a program that excludes a religious organization from a secular benefit. The playground grant was directed toward recycled-tire surfacing, not worship, religious instruction, or preparation for ministry.

Free Exercise principles and affirmative benefits

The fundamental problem with Chief Justice Roberts’s analysis is that in reaching his result, he conflates two fundamentally different types of Free Exercise challenges: those actively inhibiting self-determined religious devotion and those merely denying an affirmative benefit.

Given the historical purposes of the Clause, it is no surprise that most Free Exercise cases arise in the context of the government imposing an active burden on the individual’s actual practice of his faith.

Cases like these represent the essential core of the principal of religious liberty; the freedom to direct the substantive practice of your faith as you see fit, without interference from the governing majority.

A second strand of subtly different but principally identical cases concerns the denial of what we might call universal societal benefits based on religious practices. Decided under the Establishment Clause, Everson v. Board of Education announced the principle that “cutting off” religious groups “from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks” is antithetical to the protections guaranteed by the First Amendment.

Nominally, such services could be deemed affirmative state benefits as opposed to active inhibitions on practice. But their universality and essentiality to functioning in civil society should more than suffice in demonstrating that their denial, based on an individual’s religious practice, speaks, once again, to the essential substance of Free Exercise protections.

The individual in such cases is being asked to forsake the precepts of his faith to participate fully and equally in society in ways he is otherwise entitled. Thus, although nominally benefits, such denials are better conceived of legally and conceptually as burdens on religious practice.

The dissenting view

Justice Sonia Sotomayor’s dissenting opinion, in which she was joined by Justice Ruth Bader Ginsburg, strongly condemns the majority’s ruling.

The dissent states that the case “profoundly changes” the relationship between church and state “by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” which “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

The dissent viewed the grant as a direct payment of public money to a church-operated facility. From that perspective, Missouri’s exclusion was not a penalty imposed on religious exercise but an effort to preserve the state’s antiestablishment principle.

The majority and dissent therefore disagreed not only about the result but also about the constitutional characterization of the program. The majority characterized the funded activity as secular playground resurfacing, while the dissent emphasized that the recipient was a church and that public money would flow directly to it.

Footnote 3 and the limited scope of the ruling

The fourth question is where it gets interesting. Footnote 3 in Chief Justice Roberts’ opinion gave lower courts the ability to read this ruling narrowly.

It says: “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.”

Justices Thomas and Gorsuch took issue with the footnote in their concurring opinions, worrying that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the court’s opinion.

Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.”

Of course, it is entirely possible that this ambiguity is why Roberts intentionally included the footnote, i.e. in order to sway more justices to join the main position, and it may even have helped to draw in Justices Kennedy, and Kagan and Breyer in concurrence with the judgment.

The footnote, however, did not get a majority and so the question of whether the government can keep religious institutions out of other types of neutral secular public benefit programs remains open.

Implications for education policy

What is the proper relationship between church and state? How does this relationship apply to and impact public goods, such as education? And what would something as mundane as recycled tire playground surfacing have to do with any of this?

The 2017 Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer provided some answers - and created many new questions - regarding the ever-shifting lines separating church and state in the U.S.

The Trinity Lutheran decision is especially relevant in education policy, as many have anticipated that the ruling may have implications for voucher programs, public fund use in religiously affiliated charter schools or other instances of religious institutions seeking government funding for education.

School vouchers

In particular, court watchers had been looking for this ruling to have an effect on the long-running tuition vouchers debate.

The Supreme Court, in Zelman v Simmons-Harris (2002) said that as a matter of federal law tuition vouchers that de facto support religious schools are not in violation of the Establishment Clause, so long as they are religiously neutral and parents have the right to pick the school.

A 2002 Supreme Court ruling affirmed the constitutionality of voucher use toward religious schools. The majority opinion ruled that the Establishment Clause of the First Amendment had not been violated when government aid reached religious institutions “only by way of the deliberate choices” of parents deciding where to use school vouchers.

States, however, are still free to operate in what the Court in Locke v Davey (2004) called the ‘space between’ the religion clauses, i.e. while the Establishment Clause could allow vouchers, states are not necessarily violating anyone’s Free Exercise rights if they do choose to ban them for being akin to state-funding of religion.

This case could have answered the state voucher question definitively, but instead, Instead, proponents of tuition vouchers for private (including religious) schools have celebrated the opinion for condemning the denial of a public benefit on the basis of religious identity, while at the same time opponents of tuition voucher programs, many of whom worry about diverting money from public schools, have pointed to the footnote as an explicit affirmation that the Court was not talking about those kinds of programs.

In particular, vouchers are often used at schools whose programming includes clearly religious content that would arguably fall right under the Footnote 3 category of “religious uses of funding.”

A ruling against that type of funding, they argue, would likely garner majority support, the justices of the main opinion today plus Justices Sotomayor and Ginsburg.

Religious charter schools and public funding

Many states currently only allow charter school funding to non-sectarian organizations and have broader Blaine Amendments restricting public money from going to religious institutions, but perhaps the new precedents set by the Trinity Lutheran case could open the door to future challenges of these restrictions.

For instance, if an applicant for a public benefit program may not be disqualified on the basis of their religious character, the argument goes, then how can states deny charter school funding to expressly religious schools?

These decisions have shown that the school choice arena is an interesting site of entanglement between religion and politics that will likely be a future battleground for these issues.

Tax-credit scholarships and the public-private distinction

The truth, however, is that while advocates on both sides are gearing up for the next battle, the war over private school tuition might already be over.

The very same day that Trinity was decided, a Georgia Supreme Court Case, Gaddy v. Georgia Department of Revenue, reaffirmed that tax-credit scholarship programs are fully constitutional, because the scholarship funds are private donations and not public money.

So far, 17 states are using tax-credit scholarships, and the unanimous decisions of everyone from the U.S. Supreme Court (Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011)) to the numerous state supreme courts that have dealt with the issue have all protected these tax credits by agreeing that they are not government expenditures.

So while Trinity is an interesting case that reaffirms an important position in First Amendment jurisprudence, i.e. that you cannot single out religious people or groups for unfavorable treatment, those who are looking to fight the broader battle over school choice should probably stop concentrating on the religious/secular distinction, and look harder at the public/private split.

Subsequent litigation and continuing questions

Trinity Lutheran is already affecting additional cases: For instance, on June 10, the U.S. Department of Justice expressed support for a federal case in Maine challenging a ban on government-provided tuition used toward sectarian schools in towns without public schools.

The DOJ extensively cites Trinity Lutheran in its statement of support. Although the Trinity Lutheran ruling provided an answer to one specific instance of how the courts should patrol the lines between religious institutions and government programs, this conversation is far from over.

The school choice movement will likely continue to be front and center in conversations about the proper relationship between church and state for many years to come.

Supreme Court proceedings and decision timeline

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