U.S. Supreme Court Forbids Exclusion of Churches from State Grant Program

by Hogan Lovells

Hogan Lovells

On June 26, 2017, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the U.S. Supreme Court held unconstitutional under the Free Exercise Clause Missouri’s refusal to award a playground resurfacing grant to a church.  The Court ruled for the first time that the government’s decision to exclude churches because of their religious identity from a generally available public grant program must survive strict scrutiny.  The Court also made clear that a state’s “policy preference for skating as far as possible” from the Establishment Clause cannot alone justify such discrimination.

Missouri is one of 38 states that has enacted a so-called “Blaine Amendment” in its state constitution.  Born of anti-Catholic bigotry in the 19th century, such amendments generally prohibit any form of financial support to any church or sect.  See Mitchell v. Helms, 530 U.S. 793, 828 (2000) (Plurality Opinion).  Missouri’s Constitution, for example, 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, or in aid of any priest, preacher, minister or teacher thereof, as such.”  Based on that provision, Missouri had adopted a policy “of denying grants to any applicant owned or controlled by a church, sect, or other religious entity.”  Although Missouri conceded that Trinity Lutheran Church otherwise qualified for and would have received the grant, the State refused to award a grant to Trinity Lutheran to fund a new scrap tire playground surface at its affiliated day care center.

The Supreme Court ruled 7–2 that Missouri’s action violated the Free Exercise Clause.  The Court reaffirmed that the Free Exercise Clause subjects to strict scrutiny laws that target believers for “‘special disabilities’” based on their “‘religious status’” and that this principle includes “denying a generally available benefit solely on account of religious identity.”  The Court viewed Trinity Lutheran as asserting a “right to participate in a government benefit program without having to disavow its religious character” and held that “the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant” must “withstand the strictest scrutiny.”  Missouri offered just one basis to justify the denial—a desire to “skat[e] as far as possible from religious establishment concerns.”  That rationale, the Court said, “cannot qualify as compelling” where it involves “expressly denying a qualified religious entity a public benefit solely because of its religious character.”

The particular public benefit at issue—grants to fund scrap tire playground surfaces for children—in some ways made the case easier than a case involving funds for other equipment or activities closer to a church’s religious mission.  Four Justices subscribed to a footnote emphasizing that “[t]his 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.”  Justice Breyer wrote separately to “emphasize[] the particular nature of the ‘public benefit’ here at issue,” which is to “secure or to improve the health and safety of children” and which he viewed as indistinguishable from police and fire protection.  Indeed, it appears all nine justices would agree that a state could not deny churches police or fire protection solely because they are churches.  Seven justices apparently saw the grants for scrap tire playground surfaces the same way.

Two did not.  Justice Sotomayor dissented in an opinion joined by Justice Ginsburg.  The dissent pointed out that the Court held “for the first time[] that the Constitution requires the government to provide public funds directly to a church.”  The dissent also underscored that where the Court had approved the award of public funds to religious-affiliated institutions in the past, such as in Tilton v. Richardson, 403 U.S. 672 (1971), there were Establishment Clause safeguards, such as prohibiting grantees from using the funds to construct facilities “‘used for sectarian instruction or as a place for religious worship.’”  The dissent explained that “[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. The Church’s playground surface—like a Sunday School room’s walls or the sanctuary’s pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.”

Indeed, future cases are likely to center on whether and to what extent a state’s exclusion of a church or other religious-affiliated organization from a particular funding program could be justified on Establishment Clause grounds.  That decision would likely depend to a significant degree on what the program funds.  Already, the Court has ruled that in some circumstances a state could, without violating the Free Exercise Clause, refuse to permit a student to use a state scholarship to take devotional theology courses necessary to become a minister.  Locke v. Davey 540 U.S. 712, 722 (2004).  In Trinity Lutheran the Court emphasized that the student in Locke v. Davey, was “denied a scholarship because of what he proposed to do”, not “because of who he was” and that use of taxpayer funds to pay for the training of the clergy “lay at the historic core of the Religion Clauses.”  Although the Court ruled the same could not be said about a scrap tire playground surface, the result may change depending on the particular funding program at issue.

After Trinity Lutheran neither the federal nor a state government may refuse to provide competitive grant funds (or other forms of generally available public assistance) to an otherwise qualified church or other religious-affiliated organization solely because it is religious; something more will be required.  Churches and other religious-affiliated organizations should therefore evaluate carefully any decision by a state or the federal government to deny them participation in an otherwise generally available public grant or benefit program.  Depending on the particular facts and circumstances, such a decision may violate the Free Exercise Clause.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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