Photo credit: Jarek Tuszynski (CC-By-SA 3.0)
Photo credit: Jarek Tuszynski (CC-By-SA 3.0)

The U.S. Supreme Court on Monday ruled 7 to 2 in favor of a Missouri church who was denied a state grant to improve the safety of their preschool’s playground.

In 2012 the Missouri Department of Natural Resources rejected Trinity Lutheran Church’s (located in Columbia, MO) participation in state’s Scrap Tire Program when the church’s preschool and daycare program applied to replace their pea gravel surface with a surface made from recycled tires.

In their rejection letter the state cited Article I, Section 7 of the Missouri Constitution:

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.

The Court ruled in Trinity Lutheran Church of Columbia v. Corner that “The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

Chief Justice John Roberts and Associate Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Samuel Alito, Elana Kagan, and Neil Gorsuch made up the majority. Associate Justices Sonia Sotomayor and Ruth Bader Ginsberg were the dissenting members.

Roberts writing the majority opinion noted the history of the Court ruling on the Free Exercise Clause of the First Amendment, “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.”

Rejecting the Missouri Department of Natural Resources’ argument:

The Department tries to sidestep this Court’s precedents by arguing that this case is instead controlled by Locke v. Davey. It is not. In Locke, the State of Washington created a scholarship program to assist high-achieving students with the costs of postsecondary education. Scholarship recipients were free to use state funds at accredited religious and non-religious schools alike, but they could not use the funds to pursue a devotional theology degree. At the outset, the Court made clear that Locke was not like the cases in which the Court struck down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” 540 U. S., at 720–721. Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.

He added, “the Department offers nothing more than Missouri’s preference for skating as far as possible from religious establishment concerns. In the face of the clear infringement on free exercise before the Court, that interest cannot qualify as compelling.

Justices Gorsuch and Thomas, however, disagreed with the majority opinion in footnote 3 that reads:

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 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,” Gorsuch wrote in his own opinion joined by Thomas.

He explained he did not support footnote 3 because, while it is true as stated, it “leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use…. I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?”

He added “(I don’t) see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status).”

Finally, Gorsuch writes that to the extent some might read footnote 3 applies “only: with ‘playground resurfacing’ cases, or only those with some association with children’s health and safety or health, or perhaps some other social good we find sufficiently worthy…” he cannot join in the footnote. “Such a reading would be unreasonable for our cases are ‘governed by general principles, rather than ad hoc improvisations.’”

The Court did not go so far as to strike down Blaine Amendments as found in various state constitutions and state law, but it did level the playing field for religious institutions applying for public funds when it serves a secular purpose.

Regardless, it is a positive result and was applauded by several groups.

Alliance Defending Freedom represented the church and responded to the ruling.

“The government should treat children’s safety at religious schools the same as it does at nonreligious schools. The Supreme Court’s decision today affirms that commonsense principle and the larger truth that government isn’t being neutral when it treats religious organizations worse than everyone else. Equal treatment of a religious organization in a program that provides only secular benefits, like a partial reimbursement grant for playground surfacing, isn’t a government endorsement of religion. As the Supreme Court rightly found, unequal treatment that singles out a preschool for exclusion from such a program simply because a church runs the school is clearly unconstitutional,” ADF Senior Counsel David Cortman said in a released statement.

“Religious institutions, like schools, hospitals, and shelters, should be encouraged in their benevolent work.  Our society has benefited from their selfless commitment to help communities since our country’s founding, and the insistence of some in our society that we push them out of the public square because their love of neighbor comes from their love of God is ridiculous,” Penny Nance, CEO of Concerned Women for America, said.

“The hundreds of thousands of members of Concerned Women for America applaud the justices, and we hope and pray this opinion signifies the beginning of a trend towards a loosening of the constraints on liberty they’ve unwisely (and unconstitutionally) imposed on us for decades,” she added.

“The Supreme Court’s decision today in favor of religious liberty is a huge victory,” Mat Staver, Founder and Chairman of Liberty Counsel said. “If the government

“If the government were permitted to discriminate against Trinity Lutheran Church in this case, then such discrimination could extend to other wide-ranging forms of religious discrimination, which might include disqualifying religious hospitals from Medicare or Medicaid funds to treat patients. I am particularly pleased with the precise and originalist approach of Justice Gorsuch, whose concurring opinion states that the First Amendment’s Free Exercise Clause does not allow for distinctions between religious status and religious use. This first writing as a Supreme Court Justice by Gorsuch is an encouraging sign that he will be a strong advocate of originalism,” he added.

“On first read, this is an encouraging decision as it establishes that, in general, participation by Christian schools (and other religious entities) in generally available programs should be allowed.  Any program that coerces a religious organization to change who they are or a program that discriminates based solely on a person’s or entity’s religious affiliation is not one that honors the American value of avoiding a state-sanctioned religion but one that simply chooses winners and losers based on intolerance of religion participating in the public square,” Eric Goranson wrote on behalf of Iowa Association of Christian Schools.

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