The Trinity Lutheran Decision: The Supreme Court Expands Free Exercise Rights

| August 23, 2017

The First Amendment of the United States Constitution has two provisions concerning religion: one prohibiting the government from establishing any religion; and the other guaranteeing each individual the free exercise of religion.  On June 26, 2017, the United States Supreme Court issued its decision in Trinity Lutheran Church v. Comer, the leading case in the 2016 – 2017 term on First Amendment religious liberty.  The majority described its opinion as the logical and necessary outcome, compelled by the Constitution’s guarantee of freedom of religion and by historical precedent.  The dissent characterized the case as a dramatic break with precedent, and a dangerous step towards the prohibited establishment of religion.  Both are right.

Trinity Lutheran Church is in Columbia, Missouri.  It operates a licensed preschool and day care center on church premises.  The preschool and day care have an open admission policy, meaning that there is no preference shown based on a family’s religion.  However, the Church sees the preschool and day care as part of its ministry and outreach into the community.  It actively teaches the children from a Christian perspective, and incorporates religious instruction into its daily activities.

The Missouri Department of Natural Resources offers Playground Scape Tire Surface Material Grants, with provides recycled tires to resurface playgrounds.  The grants are available on a competitive basis.

In 2012 Trinity Lutheran applied for a grant to refinish its playground.  The project met all the requirements for the grant, and was in line to be funded.  However, on May 21, 2012 the DNR wrote to Trinity Lutheran that the State was unable to provide financial assistance to the Church because the Missouri Constitution specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section, or denomination of religion.”

Trinity Lutheran filed suit, arguing that the Missouri Constitution and the decision of the DNR violated their freedom to exercise their religion.

What makes this case extraordinary is that Trinity Lutheran did not seek a ruling that Missouri CAN include its preschool in the Scrape Tire program, but that it MUST include the church preschool in the program.   Historically, courts have considered the direct grant of public funds to a church is a “hallmark of an established religion” and a bright line that could not crossed.

But the Roberts Court has been dramatically expanding the reach of religious freedom.  This seemed to be a case where what the Free Exercise Clause requires the Establishment Clause prohibits.  The nine justices issued five separate opinions, explaining how each would decide the case.

The majority opinion was written by Chief Justice Roberts, joined by Justices Kennedy, Thomas, Alito, Kagan, and Gorsuch – a majority where the “conservative” Justices Roberts, Thomas, and Alito were joined by the “moderate” Justice Kennedy and “liberal” Justice Kagan.

The majority saw this a case where a benefit that the State of Missouri makes available to the general public is denied to churches just because they are churches.  He cited established precedent that “the Free Exercise Clause protects religious observers against unequal treatment”; and that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.”  Noting that “Trinity Lutheran is a member of the community too”, Chief Justice Roberts concluded:

The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church – solely because it is a church – to compete with secular organizations for a grant.

But the majority opinion was careful to emphasize that the grant was for a playground surface, and not for an overly religious purpose.  Justices Thomas and Gorsuch wrote concurring opinions that they were ready to go much further, and hold that the Free Exercise Clause invalidates any governmental limitation of a church’s ability to compete for dollars available to the general public, whether for a secular purpose (such as a playground surface) or a religious purpose.  Justice Gorsuch wrote that it would be a mistake to read the limitation in the majority opinion as governing only “social good we find sufficiently worthy.”  To Justices Thomas and Gorsuch, “the general principles here do not permit discrimination against religious exercise – whether on the playground or anywhere else.”

Justice Breyer also concurred, but would not go so far.  He would limit the decision only to public money available for health and safety of the general public.

The dissenters (Justices Sotomayor and Ginsburg) saw the case completely differently.  They saw it as a case about the prohibition against the establishment of religion, rather than the guarantee of free exercise.  They saw it not as the logical progression based on precedent, but “a profound change” in which the Court holds “for the first time that the Constitution requires the government to provide public funds directly to a church.”

Where the majority saw the playground as “slides, swings, jungle gyms, monkey bars, and sandboxes” the dissent said that the playground was part of “a ministry of the Church” and a “sincere religious belief … to teach the Gospel to children of its members, as well as bring the Gospel message to non-members.”  As such, it was not just a playground, but a religious ministry and — there is no doubt — “the government may not directly fund religious exercise.”  As the dissent saw it, to require the State of Missouri to send money to the Church is require the government “to tax its citizens and turn that money over to houses of worship.”

Nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship … Within its walls, worshippers gather to practice and reaffirm their faith.  And from its base, the faithful reach out to those not yet convinced of the group’s beliefs.  When a government funds a house of worship, it underwrites this religious exercise.


The Church has a religious mission, one that it pursues through the Learning Center.  The playground surface cannot be confined to secular use any more than lumber used to frame the Church’s walls, glass stained and used to form its windows, or nails used to build its altar.

The dissent reviewed the history of constitutional provisions like the one in Missouri (and in force in 39 states), praising the provisions as a clear barrier between church and state: “the unique status of houses of worship requires a special rule when it comes to public funds.”  To ignore this rule, said the dissent, is to make “separation of church and state … a constitutional slogan not a constitutional commitment.”

Trinity Lutheran Church v. Comer will mean little if it a case about playground improvement.  If, however, it opens the door to requiring state governments to include churches and religious institutions in grants now available only to secular organizations, it will be a historic change.  We may not have long to wait.  On June 27, 2017 (the day after the decision was announced) the Supreme Court took action in another case before it, Doyle v. Taxpayers for Public Education.  The Supreme Court vacated the decision of the Colorado Supreme Court and asked that court to reconsider its decision based on the principles explained in Trinity Lutheran Church v. Comer.

What is Doyle v. Taxpayers for Public Education about?  It is about vouchers for school choice.  The Colorado court had ruled that a public program to provide scholarship for use at private schools cannot be extended to religious school, because the State constitution bars the state from spending public funds in aid of any church or sectarian purpose.

Now, the Colorado Court will review the case again, after which it may be back at the Supreme Court.  Whether Trinity Lutheran v. Corner will allow or require religious schools to get government funds will be a legal debate meriting national attention.

Category: Law

About the Author ()

Email | Website | Jocelyn Szymanowski is a principle with law firm of Ferguson, Schetelich & Ballew, P.A.. She received her Bachelor of Science degree in Criminal Justice from the University of Baltimore, her J.D. from Tulane University, and holds an LLM in taxation. Her practice focuses on business and non-profit organizations, real estate, tax, and banking. She is the author of Maryland Law of Religious Corporations, the leading text on Maryland Church Law. She was named a Rising Star by Super Lawyers Magazine.