The United States Supreme Court ruled today in Trinity Lutheran Church of Columbia v. Comer, argued in April by Tueth Keeney attorney James Layton.
The case arose from the Missouri Department of Natural Resources applying Missouri’s long-standing constitutional provision barring money from the public treasury from being given to a church. Similar language is found in constitutions in most other states. Here, the constitutional language was applied to exclude the preschool ministry of Trinity Lutheran Church from a program through which qualified applicants, including public and private preschools, can obtain grants to reimburse the cost of covering playground surfaces with rubber surfaces made from scrap tires.
In an opinion by Chief Justice John Roberts, the Court rejected Missouri’s policy of barring “otherwise eligible recipients … from a public benefit solely because of their religious character.” Chief Justice Roberts was joined by 6 other justices in holding that “such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.”
That statement may seem to have great breadth. But two things suggest that future application of the decision may be more limited than some may suggest.
First, the Court’s opinion says, in a footnote: “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.” That footnote received just four votes; Justices Thomas and Gorsuch expressly disavowed it. But with Justices Sotomayor and Ginsburg dissenting, a majority of the Court signaled that the holding should not be carried too far.
Second, and perhaps of more immediate importance, the Court was not asked to and did not rule that Missouri’s bar on public money going to churches was unconstitutional on its face, nor that just because Missouri has a scrap tire program that gives grants to some preschools, it must give them to all. The Court ruled that if the State has a “generally available public benefit program,” it cannot make churches ineligible because of their “religious character.” But the Court did not hold that the State cannot have criteria that ultimately exclude churches—so long as the criteria do not include religious status.
On remand, the lower federal courts may be asked to say that Missouri must include churches in its scrap tire grant program. But the Supreme Court’s holding permits two alternatives—both of which would comply with the Missouri Constitution: to continue with a “generally available” program but redraw the criteria so that they exclude a somewhat broader set of applicants based on criteria other than “religious character” (e.g., exclude all private preschools); or to narrow the program to the point it is no longer “generally available,” such as by limiting applications to public schools.