Trinity Lutheran Church of
Columbia, Inc. v. Comer (582 US ___(2017))
SUPREME COURT OF THE UNITED STATES
TRINITY LUTHERAN
CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S.
COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES
on writ of certiorari
to the united states court of appeals for the eighth
circuit
June 26, 2017
Chief Justice Roberts delivered
the opinion of the Court.
The Missouri Department of Natural
Resources offers state grants to help public and private
schools, nonprofit daycare centers, and other nonprofit
entities purchase rubber playground surfaces made from
recycled tires. Trinity Lutheran Church applied for such
a grant for its preschool and daycare center and would
have received one, but for the fact that Trinity
Lutheran is a church. The Department had a policy of
categorically disqualifying churches and other religious
organizations from receiving grants under its playground
resurfacing program. The question presented is whether
the Department’s policy violated the rights of Trinity
Lutheran under the Free Exercise Clause of the First
Amendment.
I
A
The Trinity Lutheran Church Child
Learning Center is a preschool and daycare center open
throughout the year to serve working families in Boone
County, Missouri, and the surrounding area. Established
as a nonprofit organization in 1980, the Center merged
with Trinity Lutheran Church in 1985 and operates under
its auspices on church property. The Center admits
students of any religion, and enrollment stands at about
90 children ranging from age two to five.
The Center includes a playground that
is equipped with the basic playground essentials:
slides, swings, jungle gyms, monkey bars, and sandboxes.
Almost the entire surface beneath and surrounding the
play equipment is coarse pea gravel. Youngsters, of
course, often fall on the playground or tumble from the
equipment. And when they do, the gravel can be
unforgiving.
In 2012, the Center sought to replace a
large portion of the pea gravel with a pour-in-place
rubber surface by participating in Missouri’s Scrap Tire
Program. Run by the State’s Department of Natural
Resources to reduce the number of used tires destined
for landfills and dump sites, the program offers
reimbursement grants to qualifying nonprofit
organizations that purchase playground surfaces made
from recycled tires. It is funded through a fee imposed
on the sale of new tires in the State.
Due to limited resources, the
Department cannot offer grants to all applicants and so
awards them on a competitive basis to those scoring
highest based on several criteria, such as the poverty
level of the population in the surrounding area and the
applicant’s plan to promote recycling. When the Center
applied, the Department had a strict and express policy
of denying grants to any applicant owned or controlled
by a church, sect, or other religious entity. That
policy, in the Department’s view, was compelled by
Article I, Section 7 of the Missouri Constitution, which
provides:
“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.”
In its application, the Center
disclosed its status as a ministry of Trinity Lutheran
Church and specified that the Center’s mission was “to
provide a safe, clean, and attractive school facility in
conjunction with an educational program structured to
allow a child to grow spiritually, physically, socially,
and cognitively.” After describing the playground and
the safety hazards posed by its current surface, the
Center detailed the anticipated benefits of the proposed
project: increasing access to the playground for all
children, including those with disabilities, by
providing a surface compliant with the Americans with
Disabilities Act of 1990; providing a safe,
long-lasting, and resilient surface under the play
areas; and improving Missouri’s environment by putting
recycled tires to positive use. The Center also noted
that the benefits of a new surface would extend beyond
its students to the local community, whose children
often use the playground during non-school hours.
The Center ranked fifth among the 44
applicants in the 2012 Scrap Tire Program. But despite
its high score, the Center was deemed categorically
ineligible to receive a grant. In a letter rejecting the
Center’s application, the program director explained
that, under Article I, Section 7 of the Missouri
Constitution, the Department could not provide financial
assistance directly to a church.
The Department ultimately awarded 14
grants as part of the 2012 program. Because the Center
was operated by Trinity Lutheran Church, it did not
receive a grant.
B
Trinity Lutheran sued the Director of
the Department in Federal District Court. The Church
alleged that the Department’s failure to approve the
Center’s application, pursuant to its policy of denying
grants to religiously affiliated applicants, violates
the Free Exercise Clause of the First Amendment. Trinity
Lutheran sought declaratory and injunctive relief
prohibiting the Department from discriminating against
the Church on that basis in future grant applications.
The District Court granted the
Department’s motion to dismiss.... Finding the present
case “nearly indistinguishable from Locke,” the
District Court held that the Free Exercise Clause did
not require the State to make funds available under the
Scrap Tire Program to religious institutions like
Trinity Lutheran.
The Court of Appeals for the Eighth
Circuit affirmed....
We granted certiorari, and now reverse.
II
The First Amendment provides, in
part, that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof.” The parties agree that the
Establishment Clause of that Amendment does not prevent
Missouri from including Trinity Lutheran in the Scrap
Tire Program. That does not, however, answer the
question under the Free Exercise Clause, because we have
recognized that there is “play in the joints” between
what the Establishment Clause permits and the Free
Exercise Clause compels.
The Free Exercise Clause “protect[s]
religious observers against unequal treatment” and
subjects to the strictest scrutiny laws that target the
religious for “special disabilities” based on their
“religious status.” Applying that basic principle, 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 that can be justified only by a state interest
“of the highest order.” McDaniel v. Paty,
435 U. S. 618, 628 (1978)(quoting Wisconsin v.
Yoder, 406 U. S. 205, 215 (1972) )....
[I]n McDaniel v. Paty,
the Court struck down under the Free Exercise Clause
a Tennessee statute disqualifying ministers from serving
as delegates to the State’s constitutional convention.
Writing for the plurality, Chief Justice Burger
acknowledged that Tennessee had disqualified ministers
from serving as legislators since the adoption of its
first Constitution in 1796, and that a number of early
States had also disqualified ministers from legislative
office. This historical tradition, however, did not
change the fact that the statute discriminated against
McDaniel by denying him a benefit solely because of his
“status as a ‘minister.” McDaniel could not seek
to participate in the convention while also maintaining
his role as a minister; to pursue the one, he would have
to give up the other. In this way, said Chief Justice
Burger, the Tennessee law “effectively penalizes the
free exercise of [McDaniel’s] constitutional
liberties.”
In recent years, when this Court has
rejected free exercise challenges, the laws in question
have been neutral and generally applicable without
regard to religion. We have been careful to distinguish
such laws from those that single out the religious for
disfavored treatment.
For example, in Lyng v. Northwest
Indian Cemetery Protective Association, 485
U. S. 439 (1988) , we held that the Free Exercise
Clause did not prohibit the Government from timber
harvesting or road construction on a particular tract of
federal land, even though the Government’s action would
obstruct the religious practice of several Native
American Tribes that held certain sites on the tract to
be sacred. Accepting that “[t]he building of a road or
the harvesting of timber . . . would interfere
significantly with private persons’ ability to pursue
spiritual fulfillment according to their own religious
beliefs,” we nonetheless found no free exercise
violation, because the affected individuals were not
being “coerced by the Government’s action into violating
their religious beliefs.” The Court specifically noted,
however, that the Government action did not “penalize
religious activity by denying any person an equal share
of the rights, benefits, and privileges enjoyed by other
citizens.”
In Employment Division, Department
of Human Resources of Oregon v. Smith,
494 U. S. 872 (1990) , we rejected a free exercise
claim brought by two members of a Native American church
denied unemployment benefits because they had violated
Oregon’s drug laws by ingesting peyote for sacramental
purposes. Along the same lines as our decision in Lyng,
we held that the Free Exercise Clause did not entitle
the church members to a special dispensation from the
general criminal laws on account of their religion. At
the same time, we again made clear that the Free
Exercise Clause did guard against the
government’s imposition of “special disabilities on the
basis of religious views or religious status.”
Finally, in Church of Lukumi Babalu
Aye, Inc. v. Hialeah, we struck down three
facially neutral city ordinances that outlawed certain
forms of animal slaughter. Members of the Santeria
religion challenged the ordinances under the Free
Exercise Clause, alleging that despite their facial
neutrality, the ordinances had a discriminatory purpose
easy to ferret out: prohibiting sacrificial rituals
integral to Santeria but distasteful to local residents.
We agreed. Before explaining why the challenged
ordinances were not, in fact, neutral or generally
applicable, the Court recounted the fundamentals of our
free exercise jurisprudence. A law, we said, may not
discriminate against “some or all religious beliefs.”
Nor may a law regulate or outlaw conduct because it is
religiously motivated.
III
A
The Department’s policy expressly
discriminates against otherwise eligible recipients by
disqualifying them from a public benefit solely because
of their religious character. If the cases just
described make one thing clear, it is that such a policy
imposes a penalty on the free exercise of religion that
triggers the most exacting scrutiny. This conclusion is
unremarkable in light of our prior decisions.
Like the disqualification statute in McDaniel,
the Department’s policy puts Trinity Lutheran to a
choice: It may participate in an otherwise available
benefit program or remain a religious institution. Of
course, Trinity Lutheran is free to continue operating
as a church, just as McDaniel was free to continue being
a minister. But that freedom comes at the cost of
automatic and absolute exclusion from the benefits of a
public program for which the Center is otherwise fully
qualified. And when the State conditions a benefit in
this way, McDaniel says plainly that the State
has punished the free exercise of religion: “To
condition the availability of benefits . . .
upon [a recipient’s] willingness to . . .
surrender[ ] his religiously impelled [status]
effectively penalizes the free exercise of his
constitutional liberties.”
The Department contends that merely
declining to extend funds to Trinity Lutheran does not prohibit
the Church from engaging in any religious conduct or
otherwise exercising its religious rights. In this
sense, says the Department, its policy is unlike the
ordinances struck down in Lukumi, which outlawed
rituals central to Santeria. Here the Department has
simply declined to allocate to Trinity Lutheran a
subsidy the State had no obligation to provide in the
first place. That decision does not meaningfully burden
the Church’s free exercise rights. And absent any such
burden, the argument continues, the Department is free
to heed the State’s antiestablishment objection to
providing funds directly to a church.
It is true the Department has not
criminalized the way Trinity Lutheran worships or told
the Church that it cannot subscribe to a certain view of
the Gospel. But, as the Department itself acknowledges,
the Free Exercise Clause protects against “indirect
coercion or penalties on the free exercise of religion,
not just outright prohibitions.” As the Court put
it more than 50 years ago, “[i]t is too late in the day
to doubt that the liberties of religion and expression
may be infringed by the denial of or placing of
conditions upon a benefit or privilege.” Sherbert,
374 U. S., at 404.
Trinity Lutheran is not claiming any
entitlement to a subsidy. It instead asserts a right to
participate in a government benefit program without
having to disavow its religious character. The
“imposition of such a condition upon even a gratuitous
benefit inevitably deters or discourages the exercise of
First Amendment rights.” Sherbert, 374
U. S., at 405. 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. Trinity Lutheran is a member
of the community too, and the State’s decision to
exclude it for purposes of this public program must
withstand the strictest scrutiny.
B
The Department attempts to get out
from under the weight of our precedents by arguing that
the free exercise question in this case is instead
controlled by our decision in 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 post-secondary education. The
scholarships were paid out of the State’s general fund,
and eligibility was based on criteria such as an
applicant’s score on college admission tests and family
income. While scholarship recipients were free to use
the money at accredited religious and non-religious
schools alike, they were not permitted to use the funds
to pursue a devotional theology degree—one “devotional
in nature or designed to induce religious faith.”
Davey was selected for a scholarship but was denied the
funds when he refused to certify that he would not use
them toward a devotional degree. He sued, arguing that
the State’s refusal to allow its scholarship money to go
toward such degrees violated his free exercise rights.
This Court disagreed. It began by
explaining what was not at issue. Washington’s
selective funding program was not comparable to the free
exercise violations found in the “Lukumi line of
cases,” including those striking down laws requiring
individuals to “choose between their religious beliefs
and receiving a government benefit.” At the outset,
then, the Court made clear that Locke was not
like the case now before us.
Washington’s restriction on the use of
its scholarship funds was different. According to the
Court, the State had “merely chosen not to fund a
distinct category of instruction.” Davey was not
denied a scholarship because of who he was; he
was denied a scholarship because of what he proposed to
do—use the funds to prepare for the ministry. Here
there is no question that Trinity Lutheran was denied a
grant simply because of what it is—a church.
The Court in Locke also stated
that Washington’s choice was in keeping with the State’s
antiestablishment interest in not using taxpayer funds
to pay for the training of clergy; in fact, the Court
could “think of few areas in which a State’s
antiestablishment interests come more into play.” The
claimant in Locke sought funding for an
“essentially religious endeavor . . . akin to
a religious calling as well as an academic pursuit,” and
opposition to such funding “to support church leaders”
lay at the historic core of the Religion Clauses. Here
nothing of the sort can be said about a program to use
recycled tires to resurface playgrounds.
Relying on Locke, the
Department nonetheless emphasizes Missouri’s similar
constitutional tradition of not furnishing taxpayer
money directly to churches. But Locke took
account of Washington’s antiestablishment interest only
after determining, as noted, that the scholarship
program did not “require students to choose between
their religious beliefs and receiving a government
benefit.” As the Court put it, Washington’s
scholarship program went “a long way toward including
religion in its benefits.” Students in the program were
free to use their scholarships at “pervasively religious
schools.” Davey could use his scholarship to pursue a
secular degree at one institution while studying
devotional theology at another. He could also use his
scholarship money to attend a religious college and take
devotional theology courses there. The only thing he
could not do was use the scholarship to pursue a degree
in that subject.
In this case, there is no dispute that
Trinity Lutheran is put to the choice between
being a church and receiving a government benefit. The
rule is simple: No churches need apply.
C
The State in this case expressly
requires Trinity Lutheran to renounce its religious
character in order to participate in an otherwise
generally available public benefit program, for which it
is fully qualified. Our cases make clear that such a
condition imposes a penalty on the free exercise of
religion that must be subjected to the “most rigorous”
scrutiny.
Under that stringent standard, only a
state interest “of the highest order” can justify the
Department’s discriminatory policy. Yet the
Department offers nothing more than Missouri’s policy
preference for skating as far as possible from religious
establishment concerns. In the face of the clear
infringement on free exercise before us, that interest
cannot qualify as compelling. As we said when
considering Missouri’s same policy preference on a prior
occasion, “the state interest asserted here—in achieving
greater separation of church and State than is already
ensured under the Establishment Clause of the Federal
Constitution—is limited by the Free Exercise
Clause.”
The State has pursued its preferred
policy to the point of expressly denying a qualified
religious entity a public benefit solely because of its
religious character. Under our precedents, that goes too
far. The Department’s policy violates the Free Exercise
Clause.
* * *
Nearly 200 years ago, a legislator
urged the Maryland Assembly to adopt a bill that would
end the State’s disqualification of Jews from public
office:
“If, on account of my religious
faith, I am subjected to disqualifications, from which
others are free, . . . I cannot but consider
myself a persecuted man. . . . An odious
exclusion from any of the benefits common to the rest of
my fellow-citizens, is a persecution, differing only in
degree, but of a nature equally unjustifiable with that,
whose instruments are chains and torture.” Speech by H.
M. Brackenridge, Dec. Sess. 1818, in H. Brackenridge, W.
Worthington, & J. Tyson, Speeches in the House of
Delegates of Maryland, 64 (1829).
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.
The judgment of the United States Court
of Appeals for the Eighth Circuit is reversed, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
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