In a landmark 7-2 decision, the United States Supreme Court has ruled in Trinity Lutheran Church v. Comer that the Free Exercise Clause of the First Amendment forbids states to categorically exclude persons or organizations from government benefits simply because the persons or organizations happen to be religious. The case involved Article I, Section 7 of the Missouri Constitution, which the state had interpreted to preclude a church in Columbia, Missouri, from being considered for a state-funded grant that would offset the expense incurred by non-profit organizations that had made playgrounds safer by adding a rubberized surface made from recycled tires. Given that the church was excluded from the grant program solely because it was a religious organization, the question before the Supreme Court was whether that exclusion could be squared with the Free Exercise Clause. You can listen to Dave discuss the background of this case, Blaine Amendments, and the oral argument in this case in these Law Meets Gospel podcasts.
Chief Justice Roberts wrote the majority opinion, most of which was joined by Justices Thomas, Kennedy, Alito, Kagan, and Gorsuch. Roberts indicated that the central problem with Missouri’s policy was that it forced religious people and organizations to choose between (1) retaining their religious affiliation, or (2) being eligible for a government benefit. He distinguished the policy in Trinity Lutheran from the policy at issue in Locke v. Davey, in which a state-funded scholarship program could be used by religious students and at religious colleges, but could not be used if the recipient desired to train to be a minister. The program in Locke, Roberts noted, did not force students or schools to choose between retaining their religious affiliation or participating in the scholarship program, so – contrary to the situation in Missouri – that program did not discriminate solely on the basis of religion.
The majority opinion also contains what may prove to be an extremely important footnote. In footnote 3, Roberts stated: “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.” Only four of the justices – Roberts, Alito, Kennedy, and Kagan – joined this footnote, so although the footnote seems to be intended to strictly limit the future application of this case and its reasoning, without a fifth justice agreeing to that footnote it is not clear the extent to which the footnote may be binding. Presumably, the dissenting justices would want to see the impact of this case minimized, and they theoretically could have joined the majority only in regard to footnote 3, thus clarifying that the impact of the case should be severely curtailed – but they did not. Justices Thomas and Gorsuch wrote short concurring opinions expressing the beliefs that it is not practical or advisable to try to limit the reach of the logic the majority employed, with Thomas implying that the Court should reconsider its conclusion in Locke v. Davey and Gorsuch pointing out potential ways in which courts might employ semantics to determine whether a particular policy imposed religious discrimination broadly, or whether it merely restricted specific uses of public funds.
Justice Sotomayor wrote a fiery dissenting opinion in which she was joined by Justice Ginsburg. Sotomayor argued that the implication of the majority opinion was that states are required to direct public money to churches – a position she finds contrary to the Establishment Clause of the First Amendment. From her perspective, “[t]he Church seeks state funds to improve the Learning Center’s facilities, which, by the Church’s own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church’s faith to the children of nonmembers.” Because the playground might be used to advance Trinity Lutheran’s religious purposes, she contended, providing government funding to improve the playground would violate the Establishment Clause. Sotomayor’s dissent also included a lengthy review of the history of state establishment of and funding for religious organizations in the first few decades after the ratification of the U.S. Constitution, warning that the majority’s ruling in Trinity Lutheran ignored important lessons about the dangers of publicly-supported religion.
Justice Breyer wrote a short concurring opinion in which he “agree[d] with much of what the [majority] says and with its conclusion,” but (apparently) thought that the majority should have begun and ended its analysis with the fact that in 1947 the Supreme Court held that the Establishment Clause did not require the exclusion of church schools from “participation in a general program designed to secure or to improve the health and safety of children.” Frankly, it is not clear whether Breyer intended for his concurrence to distinguish his own position regarding the proper scope of the case’s future application from Roberts’s position, or whether he was attempting to counter Justice Sotomayor’s suggestion that allowing Trinity Lutheran Church to directly receive state funding would violate the Establishment Clause.
In sum, the takeaway from the Court’s ruling in Trinity Lutheran is that government policies excluding religious persons or organizations from certain benefits or programs generally available to the public will likely – though not certainly – face very tough judicial scrutiny. The critical question, going forward, is what courts will make of the majority’s effort to limit the scope of its holding to “express discrimination based on religious identity with respect to playground resurfacing.” The majority opinion certainly provides a roadmap for lower courts to reach similar conclusions in different contexts, but it may not obligate them to do so. It is also important to note that the Church in this case did not argue that Article I, Section 7 of the Missouri Constitution violated the Free Exercise Clause in every application, so Missouri’s courts may continue to apply that provision’s restrictions in other contexts – at least until a higher court expands upon the Supreme Court’s ruling in this case.