In its decision in Trinity Lutheran v. Comer this week, the Supreme Court took another significant step in furthering its contemporary jurisprudence emphasizing the free exercise of religion.
Trinity Lutheran Church operates a daycare and early-learning center on its church property in Boone County, Missouri. The church explicitly states that its early learning program is one of its ministries, and that it includes “daily religion … activities” according to “a Christian world view.” The church applied to a program of the Missouri Department of Natural Resources for a grant to repave its playground with recycled automobile tires.
Denying the grant solely because the applicant was a church, the state of Missouri cited a section of the Missouri 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, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”
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According to the decision of the Eighth Circuit Court of Appeals ruling against the church, that section was placed in the Missouri state Constitution in 1870. And although neither the Eighth Circuit nor the Supreme Court elaborated, it is one of the explicitly anti-Catholic Blaine Amendments that swept the country in the latter part of the Nineteenth Century and which still exist in the constitutions of many other states. As the Eighth Circuit did acknowledge, Missouri has maintained not just a wall of separation between church and state but a “very high wall,” and its state constitution is “more restrictive than the Establishment Clause of the United States Constitution.”
By a 7-2 margin, with only Justices Sotomayer and Ginsburg dissenting, the Court, in an opinion written by Chief Justice Roberts, ruled in favor of Trinity Lutheran. As a preliminary matter, the Court noted a remarkable and perhaps historic element of the case, namely, that the two parties, the church and the state of Missouri, had agreed that the state could have decided to fund the playground on an equal basis with other applicants. Therefore, there was no Establishment Clause issue. This agreement of the parties as well as seven justices of the Court is remarkable because during the approximately forty years after the seminal “wall of separation” case, Everson v. Board of Education in 1947, the state of Missouri could have been confident that Supreme Court jurisprudence would have allowed it to contend that the Establishment Clause simply forbade it to fund a religious entity.
But in this case which commenced in 2013, the only question before the Court was under the Free Exercise Clause. Did the rejection of the church’s application solely on the basis of religion cause an injury to the church’s free exercise of religion?
The most important precedent that the Court relied upon was its decision in Church of Lukumi Babala v. City of Hialeah (1993) in which it ruled that a city’s prohibition of animal sacrifice violated the precepts and prevented the free exercise of the Santera religion. That was one of the more recent cases that changed the tone and direction of the Supreme Court’s religion-clauses jurisprudence. It has been and continues to be a landmark for its holding that “the Free Exercise Clause protects religious observers against unequal treatment.” Applying the same principle to Trinity Lutheran, the Court ruled that a government program cannot require a church “to renounce its religious character in order to participate in an otherwise generally available public benefit program for which it is fully qualified.”
The majority also had to deal with the case of Locke v. Davey (2004), especially as an answer to the sharp dissent of Justice Sotomayer joined by Justice Ginsburg. In Locke, the Supreme Court upheld a prohibition by the state of Washington excluding theology majors from a state college scholarship program. Comparing Locke to the present case, Chief Justice Roberts argued that the theology-major plaintiff in Locke was denied funding for what he planned “to do,” while the Trinity Lutheran playground was discriminated against for “what it is—a church.” The state of Washington had excluded a category of major instruction, theology, from funding but had not forced students to choose between their religious beliefs and the scholarships, Roberts said. In fact, the state scholarships could be used at religious colleges and could be used to enroll in religious courses at secular or religious colleges.
This line of reasoning was not enough for Justice Sotomayer who maintained that there was little difference between funding the education of religious leaders and funding one of the ministries, playgrounds, of churches. Additionally, Justice Sotomayer strongly maintained that this should have been an Establishment Clause case: “constitutional questions are decided by this Court, not the parties’ concessions.”
There have now been four cases since 2012 in which the Supreme Court has ruled in favor of religious liberty. In probably the most important of those cases, Hosanna Tabor (2012), the Court unanimously held that federal disability law could not interfere in hiring decisions of a Lutheran church and its school. And in the Hobby Lobby (2014) decision and the remand of the Little Sisters of the Poor case (2016) to the lower courts, the Supreme Court effectively ruled that Christian people must be allowed to live their faith all the time, including in business, not just on Sunday morning.
The federal government was not involved in the Trinity Lutheran case. It was very much involved in the other three cases, which were major losses by the Obama administration in its campaign to restrict religious liberty.