By Mark Walsh
[Updated Tuesday 7:35 a.m.]
The state of Missouri violated the U.S. Constitution’s free exercise of religion clause when it denied a church a grant to use shredded scrap-tire material to improve its preschool playground, the U.S. Supreme Court ruled in a 7-2 decision Monday.
The court, however, decided the case on relatively narrow grounds that left the implications for state barriers to religious school vouchers and other school choice measures unclear.
The farther-reaching question underlying the case was whether state constitutional provisions that strictly bar government aid to religion violate religious freedom protections in the First Amendment. Those state-level measures are considered among the last legal barriers to expanding vouchers and tax credits for use at private religious schools.
Missouri is one of 39 states with such “Blaine amendments” in their state constitutions. The provisions are named for James G. Blaine, the 19th-century congressman who led an unsuccessful 1876 effort to amend the U.S. Constitution to prohibit public funding of religious schools at a time when the growing Roman Catholic population was pressing for government funding for parochial schools.
But the Supreme Court did not need to enter that debate to decide in favor of the church.
In an opinion written by Chief Justice John G. Roberts Jr., the court overturned a ruling by the U.S. Court of Appeals for the 8th Circuit, in St. Louis, that had upheld the denial of the grant by the Missouri Department of Natural Resources.
“The department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” Roberts wrote.
Justices Anthony M. Kennedy, Samuel A. Alito Jr., and Elena Kagan joined Roberts’s opinion in full, while Justices Clarence Thomas and Neil M. Gorsuch filed concurrences expressing some disagreements with some of the chief justice’s fine points. Justice Stephen G. Breyer wrote a short opinion concurring only in the outcome.
Justice Sonia Sotomayor wrote a passionate dissent that was joined by Justice Ruth Bader Ginsburg, and which Sotomayor read in part from the bench.
“The court today dismantles a core protection for religious freedom provided” in the First Amendment’s clauses guaranteeing free exercise of religion and prohibiting government establishment of religion, Sotomayor said. “It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others—it must do so whenever it decides to create a funding program.”
U.S. Secretary of Education Betsy DeVos issued a statement praising the ruling. “This decision marks a great day for the Constitution and sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment,” she said. “We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”
No ‘Chains or Torture’
The Trinity Lutheran case stemmed from efforts by the church to improve its preschool playground by applying in 2012 for Missouri’s scrap-tire grant program, which provides money to install safe, rubberized ground coverings that provide an environmentally friendly use for old tires. Missouri officials turned down the church’s application, which otherwise ranked high on a set of neutral criteria, based on the state constitutional provision that bars direct or indirect government financial aid to churches.
Trinity Lutheran had sued the state under its First Amendment right to free exercise of religion and its 14th Amendment equal-protection right. A federal district court in 2013 dismissed the claims. That court rejected the church’s free-exercise claim because the scrap-tire program involved a direct payment to a religious institution that would raise First Amendment establishment-of-religion concerns comparable to those cited by the Supreme Court in its 2004 decision in Locke v. Davey.
In that case, the justices held that the state of Washington could deny a scholarship to a student studying “devotional theology” without running afoul of the student’s free-exercise rights.
Trinity Lutheran appealed to the 8th Circuit appeals court, where a panel voted 2-1 in 2015 to uphold the district court, expressing concern about the “direct grant of public funds to churches.”
Writing for the Supreme Court majority, Chief Justice Roberts distinguished the Locke case from Trinity Lutheran.
“In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit,” he said.
“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion,” Roberts wrote. “And the result of the state’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the 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 all the same, and cannot stand.”
In their concurrences, Thomas and Gorsuch declined to endorse a statement Roberts made in a footnote that “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.”
Gorsuch said he worried that some might “might mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by” the court’s church-state rulings. Such a reading would be “unreasonable,” he said.
Justice Breyer, in his opinion concurring in the judgment, stressed that he was basing his decision on “the particular nature of the public benefit here at issue"—a program for health and safety of children.
“Public benefits come in many shapes and sizes,” Breyer said. “I would leave the application of the free exercise clause to other kinds of public benefits for another day.”
Relevance for School Choice
The Trinity Lutheran case drew significant interest from groups that were more interested in what the court’s decision may mean for school choice.
The Supreme Court ruled in its landmark 2002 decision in Zelman v. Simmons-Harris that the federal Constitution’s establishment clause did not prohibit the inclusion of religious schools in a government voucher program when parents are making the decision where to direct the state aid.
But the state Blaine amendments have proved to be a barrier to the inclusion of religious schools in voucher programs and some other forms of state aid.
The National Education Association, which has often led the legal fight against the expansion of school voucher programs, filed a friend-of-the-court brief in support of Missouri emphasizing the theory that states may use their own constitutions to provide stronger individual rights than those guaranteed by the U.S. Constitution.
“Many state courts have departed from this court’s establishment clause precedents in construing their state constitutions to prohibit public funding of religion in ways that would be permissible under the establishment clause,” the NEA brief said.
In a statement Monday, NEA President Lily Eskelsen Garcia called the decision a “setback” for voucher proponents.
“We applaud the Supreme Court’s refusal to accept the invitation of voucher proponents to issue a broad ruling that could place in jeopardy the ability of states to protect their public education system by refusing to divert public school funding to private religious schools,” she said.
Meanwhile, the Institute for Justice, which was closely involved in the Zelman case, filed a brief on the side of Trinity Lutheran that said, “The question presented in this case—whether the federal Constitution tolerates a state’s exclusion of churches from an otherwise generally available public-benefit program—takes on particular significance for the rapidly growing number of school-choice families.”
Michael Bindas, a senior attorney with the institute, issued a statement that agreed the decision was narrow, but said, “Today’s decision reaffirms the fundamental principle that government must be neutral with respect to religion and therefore cannot exclude religious institutions from otherwise generally available public benefit programs. ... This principle of religious neutrality—that government may neither favor nor disfavor religion—applies whether the government is enabling schools to resurface their playgrounds or empowering parents to direct their children’s education.”
Even as it considered the merits of the Trinity Lutheran case, the high court has been holding on to two cases that address the application of state Blaine amendments to aid to religious schools.
One involves a New Mexico textbook-lending program for private schools and a New Mexico Supreme Court decision that Blaine amendment-like language in the state constitution barred the inclusion of religious schools in the program.
The other involves the unusual efforts by the Douglas County, Colo., public school district to create a tuition-scholarship program for students to attend private schools, including religious schools. The Colorado Supreme Court has blocked the program based on a Blaine-like, “no aid” provision in the state constitution.
The court could act on those pending appeals as soon as Tuesday.
Staff Writer Evie Blad contributed to this report.
Illustration: Chief Justice John G. Roberts Jr. reads the U.S. Supreme Court’s majority opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer on June 26.--Art Lien
A version of this news article first appeared in The School Law Blog.