By: Charlie Melcombe and Stanley Carlson-Thies

Is it constitutional for a church or other religious organization to be given money by the government? By a 7-2 vote on June 26, 2017, in Trinity Lutheran v. Comer, the U.S. Supreme Court ruled that Missouri’s decision to deny a state grant to a Christian preschool and daycare center simply because the center is controlled by a church was an unconstitutional violation of the First Amendment’s Free Exercise clause. Missouri argued its denial was required by a state constitutional provision forbidding state funding of religious organizations. However, the Court decided the state constitutional provision was not persuasive enough to overcome the Court’s reluctance to uphold programs in which the government excludes a religious organization simply because of its religious character.

The 7-2 vote is an encouraging victory for religious freedom, as well as for the safety of preschool children of all faith backgrounds. Yet, the Court’s reasoning leaves some questions unanswered regarding funding partnerships between faith-based organizations and government. Nevertheless, this is a strong ruling which affirms that religious institutions can participate in government funding programs without being penalized solely because of their religious character. And the decision signals that free exercise rights and religious freedom remain deeply-valued, constitutionally-enshrined protections available to all, despite increased polarization in our society.

In 2012 Trinity Lutheran Church Child Learning Center, a Christian preschool in Columbia, Missouri, applied to Missouri’s Playground Scrap Tire Surface Material Grant Program, seeking a state grant to pay for its playground to be resurfaced with rubber derived from recycled tires. The Center, which was founded as a separate nonprofit organization in 1980, joined with Trinity Lutheran Church in 1985. The Center offers year-round preschool and daycare services to students from all religious backgrounds. In its grant application, the Center said it aimed to create a safer playground for disabled and other children, to improve the durability of the playground, and to help the environment through the use of recycled tires. The Center’s mission explains that it offers “an educational program structured to allow a child to grow spiritually, physically, socially and cognitively.”

In 2012, the Missouri program received 44 applications for 14 grants. Trinity Lutheran’s application ranked fifth based on the state’s established criteria, which included factors “such as the poverty level of the population in the surrounding area and the applicant’s plan to promote recycling.”. However, the Missouri Department of Natural Resources denied Trinity Lutheran’s application, claiming that the Missouri Constitution did not permit such a grant, because the preschool is affiliated with Trinity Lutheran Church. Article I, Section 7 of the Missouri Constitution provides “[t]hat no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

Provisions like this, called Blaine Amendments, are part of the constitutions of more than two-thirds of the states. They are named after Representative James Blaine, who in the later nineteenth century, as Catholic immigration was growing, supported a federal amendment barring state funding of religious schools. An attempted federal amendment failed in the 1870s, but most states adopted similar provisions in their constitutions. The amendments have generally been viewed as anti-Catholic in inspiration, although some proponents of strict church-state separation argue that provisions forbidding government support of houses of worship can be defended on neutral grounds. In its press release addressing Trinity Lutheran, the Becket Fund for Religious Liberty, a non-profit firm that focuses on religious freedom, accurately described Blaine amendments as “discriminatory state law[s] . . . designed to block funding to Catholic schools.” Becket pointed out that it is “discriminatory to block religious groups from generally available public safety programs.”

Chief Justice Roberts’ majority opinion narrowly focused on whether Missouri’s program violated Trinity Lutheran’s free exercise rights by denying it a grant. He explained that the Court holds to a strict standard government policies which exclude a religious group because of the group’s religious character and concluded that Missouri’s grounds for not funding religious groups was not compelling enough to overcome the high standard. He highlighted the Court’s history of not excluding religious entities or individuals from public support and involvement simply because they are religious.

Chief Justice Roberts said that it violates the Constitution for a religious organization to be required to shed its religious character as the condition for being able to receive a grant that it is otherwise eligible to receive.He explained that the Court’s precedents requiring equal treatment act as a shield from not only explicit “prohibitions” on free exercise, but also from “indirect coercion or penalties on the free exercise of religion.” Justice Roberts found that “[t]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our constitution.”

Notwithstanding this strong and bold affirmation that religious organizations cannot be barred from government funding simply because of their religion, the several opinions accompanying the decision indicate the Court was not precluding the possible constitutionality of some limits on government funding. Footnote three of the majority opinion said that the case “involves express discrimination based on religious identity with respect to playground resurfacing,” and that the Court was “not address[ing] religious uses of funding or other forms of discrimination.” The Court’s decision did not address these issues, although there is guidance from other court decisions and legislation. For example, under federal civil rights laws, religious employers are free to make many hiring decisions based on religion, and this freedom is supported by the Religious Freedom Restoration Act (RFRA).

Some legal scholars have posited that, although the decision did not reference Blaine amendments by name, it nonetheless chips away at Blaine amendment restrictions by finding that free exercise rights trump a state’s desire to unilaterally exclude religious groups from government funding. Likely, despite the silence about Blaine amendments, the decision is actually a strong blow against every categorical exclusion of religious organizations from public benefits.

The majority opinion’s revisiting of its previous Locke v. Davey decision is instructive. In Locke, the Court had upheld the constitutionality of a Washington scholarship program that excluded participation by students studying devotional theology. In Trinity Lutheran, the Court affirmed Locke, but only as barring students using the money for theological training. The Court noted that the Washington program permitted students to use scholarship funds at a religious school, or to study religion at a religious or secular school–only the vocational emphasis of a degree in devotional theology was the restricted use. The Court reasoned that under this narrowed reading of Locke,it is more important how someone is using the money than what the religious identity of the one using the money is.

Justice Gorsuch and Justice Thomas concurred in the decision with the exception of footnote three. Justice Gorsuch questioned the majority’s status-use distinction, claiming that it is not always easy to tell where religious identity ends and religious activity begins. He also noted that footnote three would unnecessarily and harmfully limit the decision’s application to cases involving schools and playgrounds.

Justice Breyer concurred in the decision while highlighting the importance of the type of “public benefit” present in Trinity Lutheran. He argued that “[p]ublic benefits come in many shapes and sizes,” saying that he preferred to “leave the application of the Free Exercise to other kinds of public benefits for another day.”

Justice Sotomayor dissented from the Court’s decision, arguing that the Court contradicted its precedent on the relationship between church and state, and “profoundly change[d] that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” She argued that the decision “slights both our precedents and our history,” with “reasoning” that “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.” She emphasized the religious character of the Center as a ministry of Trinity Lutheran Church. The vehemence of her dissent suggests the importance of the majority’s decision upholding funding for religious organizations, even though this case involved a specialized grant.

Some religious as well as secular commentators have agreed with Justice Sotomayor’s reasoning, stating their concern that the decision unconstitutionally undermines the separation of church and state by permitting a church-run preschool to receive government funds. Although some argue for a strict separation between church and state in a bid to reduce the role of religion in public life, others regard the separation as vital to preventing government from controlling religion. However, the majority opinion and several religious leaders, like Russell Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, have explained that allowing religious groups to compete on the same playing field as secular organizations neither establishes nor preferences religion. Rather, it avoids punishing religious groups for being religious.

Faith-based organizations across the country and in different sectors can celebrate this decision for its affirmation that religious groups cannot be categorically excluded participating in grant programs; even parents and community advocates who are not religious can likewise applaud the ruling, because it encourages educational diversity and opportunity for children and families.

In sum, the decision tells us that a state cannot automatically deny to religious organizations eligibility for a public benefit program without having very weighty reasons. The nature of the Majority opinion leaves some questions to be decided by future cases. Despite the unanswered questions, Trinity Lutheran marks an important extension of a recent line of cases including Zelmanv. Simmons-Harris, Hosanna-Tabor v. EEOC, and Hobby Lobby v. Burwell that have affirmed the continued importance of religious freedom, not just for individuals of all faiths, but for diverse organizations with diverse sacred missions, in our increasingly pluralistic public square.