In Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577 (June 26, 2017), the U.S. Supreme Court ruled 7-2 that excluding a church from a public benefit program for which it is otherwise qualified violates the Free Exercise Clause. The ruling is likely to impact many types of religious institutions eligible to participate in a variety of social services and educational programs but which are currently barred from doing so because they are religious.

Case Background

As background, the Trinity Lutheran Church Child Learning Center, a preschool and daycare center, applied to Missouri's Scrap Tire Program to replace gravel with a pour-in-place rubber surface by seeking to qualify for a grant funded through a fee imposed on the sale of new tires in Missouri. The Missouri Department of Natural Resources operates the program to reduce the number of used tires destined for landfills and dumps. Due to limited resources, the Department ranks applicants. Trinity ranked fifth of 44 applicants, but the Department deemed Trinity categorically ineligible to participate in the program under Article I, Section 7 of the Missouri Constitution, which states:

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.

Supreme Court Decision 

According to the court, the Department "puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution." Rather than "claiming any entitlement to a subsidy," Trinity Lutheran "instead asserts a right to participate in a government benefit program without having to disavow its religious character." The court distinguished this from "the denial of a grant," as opposed to "the refusal to allow the church – solely because it is a church – to compete with secular organizations for a grant." The court ruled that this exclusion must withstand the strictest scrutiny. The state asserted Article I, Section 7 of the Missouri Constitution. About 38 states have similar provisions known as Blaine amendments. Without referring to the provision as such, the court ruled that Missouri's asserted interest in complying with this state constitutional provision "is limited by the Free Exercise Clause."

Chief Justice John Roberts delivered the opinion of the court. Justices Anthony Kennedy, Samuel Alito and Elena Kagan joined him in full. Justices Clarence Thomas and Neil Gorsuch joined in all except footnote 3 of the opinion, which states that, although the case addresses "express discrimination based on religious identity with respect to playground resurfacing," it does "not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch disagree that a "useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use." They argue that the same facts may be described both ways and doubt the Free Exercise Clause should care because it concerns the exercise of religion. Justice Stephen Breyer concurred in the judgment. He considers dispositive the nature of the public benefit at issue, similar, he wrote, to other government services designed to secure or improve the health and safety of children such as police and fire protection. Cutting off these services, he opined, "is obviously not the purpose of the First Amendment."

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, arguing that, by its opinion, the court has "dismantle[d] a core protection for religious freedom provided" in the Religion Clauses by requiring government to "support houses of worship with taxpayer funds ... whenever it decides to create a funding program." They considered it significant that 38 states have constitutional provisions similar to Missouri's, which evidences to them that "public funding of houses of worship 'is of a different ilk.'"

The court reversed and remanded the case for further proceedings.