This morning, the Supreme Court of the United States issued an opinion in favor of Trinity Lutheran Church in Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court considered whether excluding churches from an otherwise neutral and secular aid program administered by a state agency violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution.  The Court held a Missouri program funding safety material for playgrounds at public and on non-secular private institutions but not religious ones violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.


Trinity Lutheran applied for a grant to upgrade its playground through Missouri’s Scrap Tire Grant Program, which the Missouri Department of Natural Resources (Missouri DNR) oversees.  Trinity Lutheran, which is affiliated with the Lutheran Church-Missouri Synod, operates a childcare center that uses its playground, teaches a “Christian world view” to enrolled children, and has a “policy to admit students of any sex, race, color, religion, nationality, and ethnicity.”  Despite Trinity Lutheran’s strong ranking, its application was rejected by the Missouri DNR due to Missouri’s “Blaine Amendment,” which prohibits State funds from being allocated “directly or indirectly, in aid of any church, sect, or denomination of religion.” Missouri, along with 36 other states, has such a constitutional restriction.  Trinity Lutheran filed suit against the Missouri DNR claiming the “categorical exclusion of religion in this case is unvarnished status-based discrimination that violates the Free Exercise and Equal Protection Clauses.”  The U.S. District Court for the Western District of Missouri dismissed the complaint, finding that the direct payment of state funds to a religious institution raised “antiestablishment concerns that are at least as comparable to those relied on by the Court” in Locke v. Davey, 540 U.S. 712 (2004).  The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal in a 2-1 decision.

Majority Decision

Justice Roberts wrote for the majority, joined by Justices Kennedy, Alito, and Kagan.  Roberts explains: “[Missouri DNR’s] policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. . . [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.”  Roberts concluded that the policy forced the church to make an uncomfortable – and unconstitutional – decision:  “It may participate in an otherwise available benefit program or remain a religious institution.”  This, Roberts explained, is improper:  to condition the availability of benefits upon a recipient’s willingness to surrender its religious status effectively penalizes the free exercise of constitutional liberties.  The State failed to identify “a state interest of the highest order,” which is necessary to justify “[Missouri DNR’s] discriminatory policy.” Ultimately, Justice Roberts states that the issue presented in this case is not controlled by the Court’s decision in Locke, leaving the ruling in place.


Justice Thomas authored a two-page opinion concurring with the majority opinion in part.  Thomas states, in part: “This Court’s endorsement in Locke of even a mild kind of discrimination against religion remains troubling. But because the Court today appropriately construes Locke narrowly, and because no party has asked us to reconsider it, I join nearly all of the Court’s opinion. I do not, however, join footnote 3.”

Justice Gorsuch authored a slightly-lengthier three-page opinion concurring with the majority opinion, but offering “two modest qualifications.”  First, Gorsuch notes his doubts about establishing “a useful distinction . . . between laws that discriminate on the basis of religious status and religious use.”  Ultimately, Gorsuch concludes that the distinction is irrelevant because the Constitution guarantees the right to free exercise of religion, not just free belief.  For this reason, Gorsuch disagrees with the majority’s belief that this case is distinguishable from Locke. Second, Gorsuch notes that footnote 3 of the majority opinion, while correct, may cause legal scholars to mistakenly take a narrow view of the decision and assume it applies only to cases involving playgrounds.  (Footnote 3 of the majority opinion states as follows: “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.”)  Gorsuch concludes: “The general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

Justice Breyer also authored a two-page concurrence, noting that the Court has previously stated that “cutting off church schools from such general government services as ordinary police and fire protection is obviously not the purpose of the First Amendment.”  He sees no significant difference between that and the “general program designed to secure or to improve the health and safety of children” currently before the Court.  As such, he “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.”


The longest opinion, by far, was a blistering dissent authored by Justice Sotomayor, joined by Justice Ginsburg.  The dissent begins with a strong warning: “The Court today 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. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”  Sotomayor frames the question before the Court as “whether Missouri can decline to fund improvements to the facilities the Church uses to practice and spread its religious views,” noting that the Court “has repeatedly warned that funding of exactly this kind . . . would cross the line drawn by the Establishment Clause.”  Sotomayor notes that the playground’s surface is “integrated with and integral to its religious mission.”  This, Sotomayor concludes, is different than prior cases in which the Court found some direct government funding of religious institutions to be consistent with the Establishment Clause because “the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution.”

Justice Sotomayor further argues that, even assuming the absence of an Establishment Clause violation, the Court errs in its analysis of the Free Exercise Clause.  Sotomayor notes that the Court has held that the government may sometimes relieve religious entities from the requirements of government programs,” such as certain taxes.  Similarly, “the government may sometimes close off certain government aid programs to religious entities,” such as funding the training of religious leaders.  Sotomayor, laying out a long history of analysis of the relationship between church and state, concludes that Missouri’s Blaine Amendment “reflects a reasonable and constitutional judgment” and should be honored.  She concludes:  “History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government.  If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”


Although closely watched, this case did not conclude in the 5-4 split many anticipated.  The result will likely have a very real impact on the use of state funds for religiously-affiliated educational institutions if those funds are allocated for something other than the promotion of the institution’s religious mission.  For example, some may argue that this decision calls into question whether Blaine Amendments my prohibit voucher program and other types of funding for religious schools.  Given the complex group of opinions in support of the judgment, however, it is unclear exactly how broadly this ruling will be interpreted.