The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The inherent tension between these two phrases was at play in Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577 (U.S. June 26, 2017), in which the Court held by a 7-2 vote that Missouri violated the Free Exercise Clause when it categorically denied a church the opportunity to participate in a grant program to improve the playground for its daycare center. The case provides something of a judicial Rorschach test because how the issue is framed in this context will determine the outcome.
The facts are not complicated. The Missouri Department of Natural Resources has a program that provided playground material made from recycled tires to a limited number of grant recipients each year. Trinity Lutheran applied for the grant as its playground was covered with pea gravel, which, as the Chief Justice noted, “can be unforgiving” when kids fall on it. Trinity was fifth out of 44 applicants but was denied because of department policy based on Article I, Section 7 of the Missouri Constitution, which states, in relevant part: “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination or religion, or in aid of any priest, preacher, minister or teacher thereof, as such . . . .” Trinity Church sued, claiming that the department policy violated its right to free exercise of religion. The District Court granted the department’s motion to dismiss, and the Eighth Circuit Court of Appeals affirmed.
The Chief Justice wrote the majority opinion, except for footnote 3, in favor of the church. He was joined in full by Justices Kennedy, Alito, and Kagan. Justices Thomas and Gorsuch joined the opinion except for footnote 3. Justice Breyer concurred in the judgment in a separate opinion. Justice Sotomayor, joined by Justice Ginsberg, dissented. In a nutshell, the majority saw the issue as a denial of a public benefit because of the religious status of the applicant in violation of the Free Exercise Clause. The dissent saw the issue as declining to use public funds to support religious activity, which is consistent with the Establishment Clause. That both sides appear to be correct exemplifies the tension between the two clauses.
The Chief Justice began by noting that the parties agreed that Missouri could provide the benefit without violating the Establishment Clause. (Justice Sotomayor, in dissent, tartly observed that “[c]onstitutional questions are decided by this Court, not the parties’ concessions.”) The Chief Justice acknowledged, however, that “there is ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.”
Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the majority observed that “[t]he Free Exercise Clause protect[s] religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for special disabilities based on the religious status.” (Internal quotation marks omitted.) The majority also acknowledged that laws of neutral applicability do not run afoul of the Free Exercise Clause where they incidentally have an adverse impact on religious practices. See, e.g., Employment Division v. Smith, 494 U.S. 872 (1990) (denying unemployment benefits because of drug use in religious ceremony did not violate Free Exercise Clause).
Relying on Locke v. Davey, 540 U.S. 712 (2004), the department argued that its policy did not prohibit the church from exercising religion but merely declined to provide a subsidy it was not required to give. In Locke, the Court held that the state of Washington did not violate the Free Exercise Clause when it created a scholarship program but prohibited use of the funds to pursue a devotional theology degree. The majority distinguished Locke, however, on the grounds that its prohibition was based on the use of funds for a religious purpose rather than the recipient’s status. Because the policy in Trinity Church turned on the petitioner’s status, not the use of the funds, it violated the Free Exercise Clause.
Notably, in footnote 3, which Justices Thomas and Gorsuch declined to join, the Chief Justice 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.” In his concurrence, Justice Gorsuch worried that footnote 3 could be read to mean the case only applied to playgrounds and not religious discrimination generally. He also expressed skepticism at the status-use distinction, asking, “Is it a religious group that built the playground? Or did a group build the playground so it might advance a religious mission?” In his view, the distinction was irrelevant to whether discrimination on the basis of religion violates the Free Exercise Clause.
Justice Sotomayor, for her part, saw the issue as providing funds to a church for a religious purpose, noting that the church expressly viewed the daycare center as part of its religious mission. For her, the case involved directly funding religious activity in violation of the Establishment Clause. Historically, established religion meant compulsory funding of the state church or an acceptable substitute. By the 1830s states had disestablished churches, concluding that separating church and state strengthened both. She saw Locke as understanding and respecting this history. She viewed a rule against use of public funds by houses of worship as at least a permissible accommodation of Establishment Clause concerns. Thus, for her, the question wasn’t discrimination against a church, it was “a valid choice to remain secular in the face of serious establishment and free exercise concerns.”
Despite footnote 3, the Court may have opened a can of worms as the majority of states, including Connecticut, have similar provisions prohibiting the funding of religious activities. If so, the Court will have further opportunity to explore the “play in the joints” between the Establishment Clause and the Free Exercise Clause.