A decision by the Supreme Court could pave the way for municipal funds to be used by religious organizations. As we noted in a posting on May 2, 2017 Neil Gorsuch began his time as a Supreme Court Justice hearing oral arguments in Trinity Lutheran Church of Columbia v. Comer, on a challenge brought by a church in Missouri from a state program providing nonprofit institutions grants to resurface their playgrounds with recycled tires for a softer, safer surface.  Trinityargued that the preschool was excluded from the state program because the preschool is operated by a church whereas the State argued that it wished to avoid the appearance it was favoring one church or religious institution over another.

The Supreme Court, in a 7-2 decision, held that the State of Missouri Department of Natural Resources’ denial of funds to Trinity due to Trinity’s religious status violated the Free Exercise Clause of the First Amendment.  It appears the Court took issue with the denial of the funds to Trinity when considering both the use of the playground by all children (regardless of religion) and that Trinity was ranked the 5th best application of the 44 received.  This is based, in part, upon the remainder of Footnote 3 which includes the statement that the Court is not addressing “religious uses of funding or other forms of discrimination.”  In other words, the denial of funds to the church in Trinity was unconstitutional because the proposed use was not a religious use.

However, some members of the Court noted an important caveat to their holding in a footnote to their decision.  In Footnote 3 of the decision, some members of the Court stated the following:

“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.”

This footnote has created significant inquiry into the breadth of the Court’s decision and how it will be applied in a multitude of other scenarios (presumably, not all of which will be related to the limited issue of “playground resurfacing.”)  How the Court’s decision will apply to other uses of public funding to religious organizations and institutions remains to be seen and will be closely followed by municipalities and school districts.  It is of note that some members of the Court who otherwise agreed with the majority opinion refused to sign on to this footnote which appears to limit the application of the decision to non-religious uses.

While the application of this decision to other types of funding remains unclear from this decision, readers should consider the manner in which the funds will be used, as opposed to simply the religious nature of the recipient.

A copy of the full decision can be found at https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf.