The U.S. Supreme Court handed down a landmark decision yesterday in the case Trinity Lutheran Church of Columbia, Inc. v. Comer. 582 U. S. ____ (2017). The Court generally held that government cannot discriminate against religious institutions in the provision of government services or programs. You can access a full copy of the opinion here. 

In this episode, Larry Crain, a nationally recognized constitutional attorney, joins me to discuss the critical importance of this case for churches, other religious institutions and religious freedom generally. Larry founded Church Law Institute and is also a Senior Partner at Crain | Schuette Attorneys. Larry previously served as General Counsel for the Rutherford Institute and later as Senior Counsel for the American Center for Law and Justice. He has litigated a broad spectrum of constitutional issues on a national level before the United States Supreme Court, the Third, Fifth, Sixth, Seventh and Ninth Circuit Courts of Appeal, the Supreme Court of Massachusetts, the Supreme Court of North Carolina and the Supreme Court of Tennessee. His litigation experience on issues of constitutional law spans 26 states.

We discussed the facts of the case, the holding of the Court and what it means for churches and religious freedom:

#1 What Was the Controversy?

Trinity Church operates on its church premises a licensed preschool and daycare called the Learning Center. The Center was initially established as a stand-alone, non-profit corporation, but in 1985, it merged and became a part of the Trinity Lutheran Church.  The Learning Center has an open admissions policy, but it is firmly committed to an evangelical mission and its daily religious instruction teaches children about the gospel of Jesus Christ.

The Missouri Department of Natural Resources sponsors a program whereby qualifying applicants can receive grants to resurface playgrounds with a rubberized product created from recycled tires. The program, called the Playground Scrap Tire Surface Material Grants, is a solid waste management program.  Trinity Church made application for a Scrap Tire grant to resurface its playground. The DNR denied the application claiming the grant of such benefits would violate the Missouri Constitution’s prohibition against state aid of any kind to a religious institution. Missouri’s Constitution does contain a strong prohibition against any direct state aid to religion:  “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.” (Art. I, § 7).

#2 What Was Decided? 

The Court discussed related cases. The Court specifically distinguished this case from a situation where government fundings is being used to train preachers or theologians (such as in Locke v. Davey, 540 U.S. 712 (2004)). The Court extensively discussed the case McDaniel v. Paty, which held that ministers could not be excluded from the Tennessee legislature simply because they were ministers. 435 U.S. 618 (1978). The Court noted that this program (tire scraps for playgrounds) was generally available to secular institutions and was designed to protect children.

Chief Justice Roberts, who wrote the opinion of the Court, concluded as follows: “The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. 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.

There has been significant discussion about footnote 3, which states: “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.” The newest Supreme Court justice, Neil Gorsuch, disagreed with this position, stating: “I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.” Larry explains this footnote at length. Limiting religious freedom to “status” is, in our opinion, too limiting. Religious expression or “use” is the better measure.

#3 What Dos This Mean?

This case reinforces other cases holding that government neutrality must cut both ways—government cannot be hostile to religion institutions in the administration of government programs. Other cases that support this legal doctrine are Ark Encounter, LLC v. Parkinson, 152 F. Supp. 3d 880 (E.D. Ky. 2016) (the state of Kentucky could not deny a sales tax exemption to a theme park because it is religious) and American Atheists, Inc., v. City of Detroit Downtown Dev’lAuth., 567 F.3d 278 (6th  2009) (city government could not deny reinvestment funds to churches in a downtown area simply because they were churches).

In summary, religious freedom, as a legal principle, is built/strengthened case by case. Therefore, even if this case is about tire scraps and scraped knees, it is vital win for religious freedom.