Trinity Lutheran v. Comer: A First Amendment Win

Advocates of religious freedom in America saw a big win a few weeks ago when the Supreme Court ruled 7-2 in favor of Trinity Lutheran Church over the state of Missouri. The majority opinion, written by Chief Justice Roberts, reaffirms that religious liberty still has a place in America today. Though the facts of this case are simple, as well as the outcome, this case is incredibly important to churches in the US for a number of reasons. Let’s first look at the case itself, and then the state of religious freedom at large today.

Facts of the Case

Photo Credit: The Becket Fund

Trinity Lutheran Church is a small local church in Boone County, Missouri. In 1985, it merged with a non-profit daycare/preschool to create the Trinity Lutheran Church Child Learning Center, where parents of any religion could enroll their young children into the year-round programs. As is customary with children’s centers, they built a playground for recess time. For years, the ground under the jungle gyms was coarse pea gravel–not the ideal surface for little kids. Some years ago, the state of Missouri began a program, funded by taxpayer dollars, that took recycled tires and ground them up to create playground surfaces. Due to the high demand and limited tires, the program disperses the tire surfaces competitively based on a number of criteria that the applicants had to fill, such as the poverty level of the community and the size and usage of the playgrounds. The more criteria the applicants fit, the higher their placement on a list of recipients (the highest ones got the tire surface). Trinity Lutheran placed number five on the list, more than enough to receive the grant.

However, a statute in the Missouri state constitution prohibited the Missouri Department of Natural Resources from giving the grant to the school. The clause in Article I, Section 7 of the Missouri Constitution 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,…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.” The Department reasoned that since the tire surface grant came from public funds, it could not be given to a church. Trinity Lutheran sued, and lost both at the district court and the Eighth Circuit Court of Appeals under the Establishment Clause.

The Supreme Court, however, took a strong 7-2 stance and reversed both rulings. Drawing on precedent such as Church of Lukumi Babalu Aye, Inc. v. Hialeah, McDaniel v. Paty, and Employment Division v. Smith, the Court found that the decision from the Missouri Department violated the Free Exercise Clause because it singled out religion as the deciding factor in giving out the tires. Though it seems like a simple case with an obvious outcome, Chief Justice Robert’s opinion draws on years of important precedent that will shape the future of religious freedom in the United States for years to come.

Why this Outcome?
David A. Cortman at lectern for petitioner (Art Lien)

Seeing as the district court and Eighth Circuit struck down the preschool’s suit on the Establishment Clause, it’s interesting that the Supreme Court drew on the Free Exercise Clause to form this opinion. For those who aren’t as familiar with constitutional law, it’s extremely important to note the huge difference between the Establishment and Free Exercise Clauses of the First Amendment. The Founders divided the freedom of religion into two parts, the first saying, “Congress shall make no law respecting an establishment of religion” (the Establishment Clause) and the second saying, “or prohibiting the free exercise thereof[.]” (the Free Exercise Clause). The language of these two laws has created a basic distinction between them. The Establishment Clause essentially means that the government cannot favor one religion over another. This, of course, was added to the Constitution to prevent the rise of a state religion, which was one of the main reasons the Puritans left Europe in the first place. The Free Exercise Clause boils down to the idea that government cannot infringe on an individual or church’s religious practice or doctrine.(1)

Seems simple enough, right? Unfortunately, a host of problems arise under a few circumstances, such as a religious practice that runs afoul of state or federal law. In today’s world, one of the biggest contributors to entanglement between church and state is a large government that is the main provider of welfare and aid, both financial and physical, to institutions and individuals. Trinity Lutheran v. Missouri is a perfect example of this problem. The school could not have gone anywhere else besides the government to find the aid it needed, and as such created an entanglement between church and state.

Of course, the Courts have dealt with this before. A few major cases have laid out standards by which the Courts can see if the entanglements are serious enough to cause a violation of the First Amendment. As far as government intervention with religion goes, the 1993 case Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (try saying that five times fast!) defined how laws and government organizations can treat religion in the community. The City of Hialeah had passed a law outlawing animal slaughter for non-commercial purposes, which negatively targeted the Church of Lukumi Babalu Aye’s practice of animal sacrifices. The Court found that the law had been passed in order to inhibit the religious practices of the church, and for no other reason. The government of the City of Hialeah thus violated the Church’s right to free exercise of religion. Chief Justice Roberts drew heavily on that case for his Trinity Lutheran opinion, saying:

The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.” McDaniel v. Paty, 435 US 618, 628 (1978).

Basically, unless the religious practice in question violates serious law, no law or government agency can inhibit that religion in practice or belief. Many argue that because this case did not revolve around a religious belief or practice, this decision erodes the so-called “wall of separation” between church and state and does not violate the free exercise clause. However, Justice Roberts argues this sentiment in a few key statements:

It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”(Lyng, 485 U. S., at 450).

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” Sherbert, 374 U. S., at 405. 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. Cf. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993) (“[T]he ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract”). Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny.

Because Trinity Lutheran was applying for the grant to support a secular program (school playgrounds), it could not be denied. If it had applied for a grant to print religious books, or pay teachers who give religious instruction, it would certainly have been denied funds, and rightfully so. The case Locke v. Davey (2004) was a similar case to this one, where a college student in Washington had applied for a state scholarship but was denied it because he was going to study pastoral ministries at a private Christian college. The Court held that denying his scholarship was not unconstitutional because the state funds were going to promote a specific religious leader and his training. However, in 1947, the Court held that a voucher program for students of all schools–be they private, public, or religious–did not violate the Establishment Clause because the vouchers were meant for public transportation and not a religious program.(2)

Essentially, the big test for cases involving religious entanglement with the government is as follows: is the religious organization or program in question requesting aid or relief for a secular purpose, or a religious one? If it can be considered secular, the government does not have the right to deny a benefit or impose a penalty on the organization. If it is religious, it becomes a violation of the Establishment Clause to provide aid. Also, if the cause is secular, the religious organization must prove that the benefit requested is generally available to all organizations and individuals, be they religious or not.

The Court decided that the playground grant was secular enough and generally available enough to warrant the Missouri law discriminatory. Let’s discuss the implications of this ruling as it pertains to religion in general.

The Effect of this Ruling

The reason this is a victory for the First Amendment is because this decision solidifies the idea that a religion is free to follow its own practices and purposes that are both spiritual and secular. It requires that the law treat all organizations, be they a secular non-profit or religious, equally. If the government were to cut off aid to secular programs run by religious groups or churches, it would violate its commitment to promoting the rights and equal protections granted by the Bill of Rights.  

Some argue that churches should have little to no entanglements with government, even to the point of separating secular church activities from government intervention. They draw on Thomas Jefferson’s famous “wall of separation” statement (3) to justify believing that the Constitution calls for a complete separation, with no interaction whatsoever. This feeling seems to come from a distrust of religious organizations, that they tend to be controlling of their members and the morals they teach. Some of this distrust may be justified due to a world history of religious persecution and modern scandals within churches, but a free enterprise of religion is essential to a thriving democracy not only in the US but all over the world.

For instance, if students at a religious school were denied general benefits such as Pell grants and federal loans, religious schools would lose entire student bodies due to the sky-high costs of education. Think of all the graduates of BYU, Notre Dame, Pepperdine, Baylor, and others who contribute to the world economy thanks to First and Fourteenth Amendment protections of religious practice. Perhaps a more compelling secular contribution of religion is humanitarian aid, when religious organizations partner with governments directly to provide aid to refugees, impoverished nations, and post-disaster clean-up.(4)  The list could go on, but in short, Americans must remember that religion in America is every bit a free enterprise as building a business, and the right to exercise one’s beliefs, even in a secular way, must always be protected by government.

Perhaps these entanglements would not happen if our national and state governments were not so large and bureaucratic. It seems that all organizations, be they religious or secular, non-profit or for-profit, and so on need some kind of aid to get off the ground. Therefore, those who would wish for a more stringent separation of church and state must therefore advocate for a smaller government that does not need to regulate every step of a market economy. The bigger a government becomes, the more conflict with guaranteed individual rights will occur.

In short, this ruling proved to the people that religious liberty is still alive and well, but is still under challenge.  In America, the government must be made to serve the people, no matter their creeds or affiliations. As long as those creeds and affiliations are compatible with the law, the government is sworn to protect them. Every person, family, and organization should have the right to participate in the market of goods and ideas, and that includes religion. Kudos to the Court for upholding that right.



  2. Everson v. Board of Education,
  5. Full opinion, Trinity Lutheran Church of Columbia v. Comer, Director of Missouri Department of Natural Resources (582 U.S. 1, 2017)