The Supreme Court, by a 7-2 vote, has held that Missouri may not prohibit a church from applying for a grant to improve its school playground simply because it is a church organization.  The policy violates the “Free Exercise” clause of the First Amendment, the Court has said.

The case arose when the Trinity Lutheran Church Child Learning Center applied for a grant under Missouri’s Scrap Tire Program to replace the pea gravel surface of a large portion of its school playground with a pour-in-place rubber surface made of recycled tires.  Although the school ranked fifth out of 44 applicants, the state refused to fund the application because it came from a church.

The state based its denial on its state constitution, which provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion….”  The church sued.  A federal District Court dismissed the suit and the Eighth Circuit Court of Appeals affirmed.  The Supreme Court has reversed.

In writing for the majority, Chief Justice John Roberts said that “the First Amendment provides, in part, that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”   He said that “the parties agree that the Establishment Clause of that Amendment does no prevent Missouri from including Trinity Lutheran in the Scrap Tire Program.  That does not, however, answer the question under the Free Exercise Clause, because we have recognized that there is ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.”

He went on to cite a group of cases in which the Court held, he said, that it is impermissible to single out the religious for disfavored treatment.  Because Missouri’s policy disqualifies the church solely because of its religious character, the policy “triggers the most exacting scrutiny.”

Missouri had relied on a previous case in which the Supreme Court had upheld denial of state funds for a scholarship for a student seeking to pursue a devotional theology degree. (Locke v. Davey)  But Roberts distinguished the case because the scholarship was not denied because of who the student was, but because of what he proposed to do.  The denial of the playground grant, he said, was based simply on the fact that the applicant was a church.

Therefore, under the stringent standard of review, only a state interest “of the highest order” could justify the state’s discriminatory policy, he said.  “Yet the Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns,” he said, and “in the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling.”

Justices Clarence Thomas and Neil Gorsuch filed a concurring opinion in which Justice Gorsuch questioned whether the distinction between religious status and religious use is a valid one for future cases. 

Justice Sonia Sotomayor filed a strong dissent, in which Justice Ruth Bader Ginsburg joined.  “This Court today profoundly changes that 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.”  (Trinity Lutheran Church of Columbia v. Comer, U.S. Supreme Court, No. 15-577, 6/26/17.) 

YOU NEED TO KNOW

This case appears to be an extension of federal law in allowing government grants directly to church organizations, although not to be used directly for religious purposes.