Trinity Lutheran Church of Columbia v. Director, Missouri Department of Natural Resources, No. 15-577 (S. Ct.)  June 26, 2017.

The United States Supreme Court last week addressed First Amendment issues generated by a playground battle between federal and state constitutional limits on church participation in competitive commerce.  In an opinion by Chief Justice Roberts, the Court determined that a church, simply because it is a church, be precluded from participation in the public economy.  Preclusion from community participation on the basis of status as a church is only permissible if the highest of government interests is involved.  The court found no interest that could survive strict scrutiny in what, in its view, ought to have been an open competition for a grant.  The plurality concluded that a state disestablishment clause forbidding distribution of public funds to religious entities must yield to the demands of the federal Free Exercise clause prohibiting imposition of special disabilities — such as exclusion from the market — on religious practice.  

Three Concurring Commentaries

In two separate concurrences, Justices Thomas and Gorsuch questioned an earlier opinion, discussed and distinguished by the majority, in which a state was found not to have erred in withholding scholarship funds where those funds would be used to prepare the student for ministry.   The vitality of the earlier opinion, as well as, in Justice Gorsuch’s view, the utility of reliance on distinctions between status and use, which may themselves become more confounding than constructive, and which are not central to Free Exercise jurisprudence.  

Justice Breyer, writing separately, offered a view that would permit Trinity Lutheran to participate in the grant program without extensive constitutional exegesis.  General public safety and health benefits, such as police and fire services, are not withheld on the basis of religion.  The program in issue is intended to contribute to child safety and, as such, may be constitutionally permissible without the need for more expansive analyses. 

The Potential Sweep of Trinity Lutheran

Far more is at issue than the seemingly homespun question of whether a church operated day care center might compete for a state grant with which to resurface its playground with recycled tire material.  The loudly unspoken implication is that churches must be included in all the activities of the public sphere.  

Whether this implication will prove to be as sweeping as may be imagined remains to be seen, but it is equally clearly implied that this will not occur without passionate opposition, as evinced by a two-justice dissent which insists that the Trinity Lutheran decision shatters the secularism that the First Amendment requires.

While the plurality of the justices focus on denial of an opportunity to compete as a special disability based on status that offends the Free Exercise clause, the dissent adamantly denies that status has ever been — or should ever be — outcome determinative.  To the dissenting justices,  the religion clauses at their core protect conscience, which must be safeguarded by ensuring that the lines between churches and the secular civil world are not blurred.  

15-577_Trinity Lutheran

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