Church Playground’s SCOTUS Win Leaves Many Questions Open

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Patrick L. Gregory

The U.S. Supreme Court’s long-awaited ruling June 26 in favor of a church denied public funding won’t settle the constitutional debate over church-state separation, scholars and attorneys told Bloomberg BNA ( Trinity Lutheran Church of Columbia, Inc. v. Comer , U.S., No. 15-577, reversed 6/26/17 ).

The Missouri Department of Natural Resources’s denial of Trinity Lutheran Church’s playground safety grant application based on its religious status was unconstitutional, the court ruled today in a 7-2 decision by Chief Justice John G. Roberts Jr.

But the case only “involves express discrimination based on religious identity with respect to playground resurfacing,” and the court didn’t address “religious uses of funding or other forms of discrimination,” according to a footnote joined by only Roberts and Justices Elena Kagan, Samuel A. Alito Jr. and Anthony M. Kennedy.

The footnote indicates, when combined with a concurrence by Justice Stephen G. Breyer, that a majority of the court wanted to limit the ruling to the facts of the case, Robert Tuttle, a professor at George Washington University law school, Washington, who focuses on law and religion, told Bloomberg BNA.

“This certainly doesn’t change the basic structure of the law” to allow government grants to religious institutions for religious purposes, Tuttle said. The decision “leaves open more questions than it answers,” he said.

However, the decision “profoundly changes” the relationship between church and state “by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” Justice Sonia Sotomayor said in a dissent joined by Justice Ruth Bader Ginsburg.

‘Far Reach?’

Thirty-nine states including Missouri have constitutional provisions banning public funding of religion.

“I think it will be a state by state issue,” but the decision is “going to have a far reach,” David A. Cortman of Alliance Defending Freedom, Washington, who argued for the church, told Bloomberg BNA June 26.

If a state interprets its constitution “to prohibit religious organizations from participating in an otherwise neutral program, that would no longer be allowed according to this opinion,” Cortman said.

The ruling will only affect religious funding bans in other states “to the extent that you can analogize” them “to playground resurfacing,” Tuttle said.

But the court’s principle that “an otherwise eligible applicant or potential beneficiary cannot be penalized simply for being religious” isn’t “limited to cases involving recycled tires,” Richard W. Garnett, a professor at the University of Notre Dame law school, Notre Dame, Ind., who teaches about freedom of religion, told Bloomberg BNA by email.

The court wasn’t “asked to and didn’t rule that Missouri’s bar on public money going to churches was unconstitutional on its face,” James R. Layton of Tueth Keeney Cooper Mohan Jackstadt P.C., St. Louis, who argued in support of the ban, told Bloomberg BNA by email.

Nor did it rule “that just because Missouri has a scrap tire program that gives grants to some preschools, it must give them to all,” he said.

Further, the court didn’t hold that a state can’t “have criteria that ultimately excludes churches—so long as the criteria do not include religious status,” Layton said.

The Missouri attorney general’s office appointed Layton to defend Missouri’s policy as private counsel after Missouri Gov. Eric Greitens (R) announced that it would be reversed.

The office praised the decision, saying it was a great day for Trinity Lutheran “and an even better day for religious freedom in America,” in a statement emailed to Bloomberg BNA.

Footnote Focus

“Footnote 3 of the decision makes clear” that the ruling is limited because it doesn’t “address religious uses of funding,” Alex Luchenitser, an associate legal director at Americans United for Separation of Church and State, Washington, told Bloomberg BNA by email. He filed an amicus brief on behalf of religious and civil rights organizations supporting the ban.

Based on the footnote and dissent, a “majority of the Court signaled that” the decision shouldn’t be “carried too far,” Layton said.

But Cortman said footnote 3 isn’t “really a big deal.”

He cited Justice Neil M. Gorsuch’s concurrence, joined by Justice Clarence Thomas, which cautioned against “mistakenly” reading the footnote to suggest that the decision applied only to cases involving “children’s safety or health.”

Gorsuch questioned whether a “useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.”

Breyer expressed a narrow view of the decision in his concurrence.

The benefit denied here was similar to denying government services like police and fire protection, Breyer emphasized.

“I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day,” Breyer said.

Denial, Discrimination

Trinity Lutheran sought the application for a playground operated by its child learning center, the court said.

DNR denied the application based on a Missouri Constitution provision banning public funding of religion, the court said.

But the “Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” the court said.

The policy “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution,” the court said.

The ban was therefore similar to a law the Supreme Court struck down in 1978, in McDaniel v. Paty, the court said.

The statute in McDaniel impermissibly disqualified ministers from serving as delegates to Tennessee’s constitutional convention, the court said.

Not Like Locke

Missouri’s policy was unlike the state scholarship program that the court upheld in 2004 in Locke v. Davey, the court said.

In Locke, scholarship funds were denied to an applicant who “refused to certify” that he wouldn’t use the funds “toward a devotional degree,” the court said.

But he wasn’t “denied a scholarship because of who he was,” the court said.

“Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church,” the court said.

Missouri’s policy therefore “imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny,” the court said.

Missouri’s interest in “skating as far as possible from religious establishment concerns” wasn’t compelling enough to withstand such scrutiny, the court said.

Locke itself is troubling because it still endorsed discrimination against religion, Thomas said in a concurrence, joined by Gorsuch.

Dissent, Establishment Clause

The decision “slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” Sotomayor said.

The parties agreed that the establishment clause didn’t prevent Missouri from granting the church’s application, she said.

But constitutional “questions are decided by this Court, not the parties’ concessions,” she said.

The clause doesn’t “allow Missouri to grant the Church’s funding request because the Church uses the Learning Center, including its playground, in conjunction with its religious mission,” she said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law