A Hole In The Wall

How the Supreme Court ’s Troubling Ruling in Mo. Church Aid Case Could Affect Other Church-State Issues

The U.S. Supreme Court may have resolved one legal battle when it ruled in the Trinity Lutheran Church of Columbia v. Comer case, but the ramifications of that decision will likely be debated in courtrooms across the country for years to come.

On June 26, the high court ruled that Trinity Lutheran Church is eligible to participate in Missouri’s taxpayer-funded grant program that awards money to nonprofits and schools to pay for playgrounds to be resurfaced with scrap-tire material. It is the first time the Supreme Court has held that states must cut checks to churches under certain conditions.

“This ruling undermines the bedrock principle that no American should be forced to support a religion against his or her will,” said Americans United Executive Director Barry W. Lynn. “The religious freedom protections enshrined in state constitutions are worth more than resurfacing a playground.”

Missouri had originally denied Trinity’s grant request, citing the nearly 150-year-old provision in its state constitution that forbids taxpayer money from being spent on houses of worship. The Missouri Constitution’s “no-aid” clause reads: “[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

Since three-quarters of U.S. state constitutions include similar no-aid clauses that could be impacted by this ruling, Americans United was very concerned about the outcome of the case. AU filed a friend-of-the-court brief with the Supreme Court, noting that no-aid clauses safeguard religious freedom by ensuring citizens’ freedom of conscience to choose which religion(s) – if any – they will voluntarily support. The provisions also protect faith communities from governmental interference and discrimination among sects.

But by a 7-2 vote, the Supreme Court ruled that Trinity Lutheran Church must get equal access to the state funds because the scrap-tire program is a generally available public benefit that the church would not use to support religious activity.

Chief Justice John G. Roberts wrote the opinion for the majority: “Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character. 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.”

If the Trinity Lutheran case involved only a single church in a single state getting a one-time grant to resurface its playground, the high court’s opinion would be disappointing but forgettable. But what concerns church-state separation advocates is how the ruling might be applied to other cases that involve private religious entities seeking access to public dollars.

“This ruling threatens to open the door to more taxpayer support for religion, which is at odds with our history, traditions and common sense,” said Lynn.

Already, AU and other organizations are explaining to courts nationwide whether, and how, the Trinity Lutheran decision should impact other pending cases. At Church & State’s press time, AU lawyers had filed or were preparing to file briefs on Trinity’s effect in several ongoing cases involving state money awarded to or sought by religious institutions.

In a lawsuit AU filed with allies in 2013 – ACLU of New Jersey v. Hendricks – the plaintiffs (including AU Delaware Valley Chapter member Gloria Schor Andersen) are challenging $11 million in grants awarded by the administration of New Jersey Gov. Chris Christie (R). The grants went to Beth Medrash Govoha, an Orthodox Jewish yeshiva, and the Presbyterian Princeton Theological Seminary. Last year a New Jersey appellate court agreed with AU that the grants violate the New Jersey Constitution’s no-aid clause, but the state appealed the decision and the New Jersey Supreme Court agreed to review the case.

In Caplan v. Town of Acton, AU is representing Acton, Mass., taxpayers who object to the awarding of historical preservation grants totaling more than $100,000 to an active church in violation of the Massachusetts Constitution. The state’s highest court in September will hear arguments on AU’s request for a preliminary injunction to prevent the grants from being disbursed while the litigation is pending.

In July, AU filed a friend-of-the-court brief in another New Jersey case, FFRF v. Morris County Board of Chosen Freeholders, explaining why the county’s distribution of $4.5 million in tax revenue to a dozen active churches through a historical preservation program violates the state constitution. In that brief, AU noted that unlike in the Trinity Lutheran case, the New Jersey churches are using the money for explicitly religious purposes.

The possibility that the Trinity Lutheran decision could affect these cases and others involving taxpayer-funded religious facilities is bad enough. But there’s a larger, even more worrisome area to which some may try to apply the decision: private school vouchers. 

“Nowhere in the Trinity Lutheran Church v. Comer opinion are the terms ‘school voucher,’ ‘tuition tax credit,’ or ‘education savings account’ mentioned,” wrote Professor William S. Koski, founding director of Stanford Law School’s Youth and Education Law Project, on Stanford Law School’s website. “But let there be no doubt that school voucher advocates and opponents alike view this case as a marker for whether the Supreme Court will require states to allow parents and children to use publicly funded school vouchers for religious schools.”

Indeed, U.S. Education Secretary Betsy DeVos, who along with President Donald J. Trump has advocated for expanding federally funded private school vouchers, wasted no time in heralding the high court’s Trinity Lutheran decision: “We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”

In statements to the media, AU Associate Legal Director Alex Luchenitser pointed to a footnote in the Supreme Court’s Trinity Lutheran decision that could be read as limiting its scope.

“The court concluded that the funding at issue in the case was used only to keep children from getting injured, not to support religious activities,” Luchenitser said. He added that the decision “does not permit public funding to go to religious institutions if the funds will be used to support religious activities.” 

Luchenitser further stated, “For example, [the] decision does not require states to include in school-voucher programs religious schools that use the voucher funds for religious instruction. Similarly, [it] does not authorize public funding of repairs to a church building that is used for worship services.”

Writing an analysis of the Trinity Lutheran opinion for SCOTUSblog, Michigan State University College of Law Professor Frank S. Ravitch called the footnote a “possible bulwark” against expanding voucher funding: “On its face, footnote 3, combined with some other statements in the majority opinion, seems to limit the ruling to programs that have no direct religious content. If that were the case, there is at least a chance that Trinity Lutheran could not be used to force state and local governments to include religious schools in every program, including those that may lead to government funds being used to send students to schools that may proselytize them, even if through the supposed private choice of parents.”

The footnote in question 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.”

Although Justices Neil M. Gorsuch and Clarence M. Thomas did not join the majority on the footnote, Justice Stephen G. Breyer, who concurred only in the judgment, wrote a separate opinion expressing views similar to those in the footnote. Moreover, Justices Sonia Sotomayor and Ruth Bader Ginsburg, who dissented from the decision, issued an opinion strongly disapproving public funding of religion.

The day after the Trinity Lutheran decision was issued, the high court sent a case involving a school voucher program in suburban Denver back to Colorado’s Supreme Court for further consideration in light of Trinity Lutheran. Americans United, along with the American Civil Liberties Union, represents parents, clergy and taxpayers who object to the proposal by Douglas County schools to divert taxpayer dollars for private, predominantly religious education.

AU and allies originally filed the lawsuit in 2011 and, in a June 2015 opinion, the Colorado Supreme Court agreed with AU that the voucher program violates the Colorado Constitution’s no-aid clause. Later that year the Douglas County School District asked the U.S. Supreme Court to review the case; it remained in limbo pending the outcome of Trinity.

In addition to remanding the Colorado voucher case back to a lower court, the U.S. Supreme Court also sent back New Mexico Association of Nonpublic Schools v. Moses. The New Mexico Supreme Court in late 2015 ruled that the state’s tax-funded program that lends textbooks to private schools violates the state constitution’s no-aid clause. The association asked the U.S. Supreme Court to review the case.

The Trinity Lutheran decision also has cropped up in several other school-funding cases. In M.L. v. Bowers, an Orthodox Jewish family seeking to have Maryland tax dollars pay for their special-needs son’s education at a private religious school filed a notice in June citing Trinity, but the 4th U.S. Circuit Court of Appeals rejected the overture. (AU filed a friend-of-the-court brief in support of the Maryland school district.)

In late July, a Michigan judge reaffirmed a preliminary injunction she had previously issued barring the state from giving $5 million in tax dollars to private schools to help them comply with state mandates. The Detroit Free Press reported Court of Claims Judge Cynthia Stephens had asked the parties in the lawsuit to file briefs on whether Trinity impacted the case; Stephens later ruled Trinity did not apply: “At this preliminary stage of the present case, this court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.”

As Ravitch explained on SCOTUSblog, public-education advocates in Michigan might be in a stronger position to block voucher schemes because the state’s constitution forbids public funding of any private schools, regardless of whether they’re religious. George Washington University Law School Professors Ira C. Lupu and   Robert W. Tuttle noted New Mexico’s constitution also bars state funding of private schools and opined in their research paper “Trinity Lutheran Church v. Comer: Paradigm Lost?” that the Trinity Lutheran ruling should not alter the lower court’s decision in the New Mexico case.

 Trinity Lutheran will also likely be considered in a Montana case, Espinoza v. Montana Department of Revenue. The Montana Supreme Court will decide in that case whether the Montana Constitution permits support of religious education through a school-voucher program that uses tax credits to funnel money to private schools. AU is preparing a friend-of-the-court brief for that case.

A week after the U.S. Supreme Court handed down its Trinity Lutheran ruling, The Kansas City Star wrote, “Trinity Lutheran today is back to being just another church on a corner.” All may have returned to normal at the Missouri church, but the effects of its lawsuit continue to ripple across the country and likely will for years. After all, the Supreme Court’s decision upends a religious-freedom principle that our founding fathers began enshrining in our states and the federal constitution two centuries ago.

Sotomayor outlined this about-face in her stirring dissent, which was joined by Ginsburg.

“To hear the Court tell it,” the two justices wrote, “this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government – that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its 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.”

Americans United vowed to make sure the high court’s ruling is not applied more broadly than it was intended.

“Taxpayer-funded religion is bad for churches, communities and citizens,” said Lynn. “Americans United will continue to fight to buttress the church-state wall because that’s the only thing that can ensure true religious freedom for everyone.”