A Safer Playground

What does a safer, softer playground have to do with religious liberty? As it turns out, more than you think. At the end of its term, the U.S. Supreme Court decided an important case on free exercise rights of religious organizations where government had argued there should be a barrier between church and state. The case, Trinity Lutheran Church of Columbia v. Comer,1 resulted in a 7:2 ruling in favor of the Church and another important First Amendment decision.


Trinity Lutheran: Missouri Denies the Church’s Application for a Grant to Resurface a Playground

Missouri has a state-wide grant program that provides incentives for organizations to use recycled tires for playground resurfacing projects. But because of the program’s popularity, there were more applicants than grant money to go around. So, the state used a merit-based approach to award the grants.

Trinity Lutheran Church runs a preschool program for children ages two to five. It had a playground at the preschool whose surface was sorely in need of updating. Along with 44 other organizations that year, the Church applied for a grant to resurface the playground at the preschool. Its application was apparently compelling: it ranked 5th out of the pool of applicants that year. If it had been any other nonprofit, it would have been awarded the grant. But simply because it was a Church, it was denied the award based on Missouri’s blanket policy, and in fact, state constitutional provision, against any government money flowing to religious organizations.

The Church filed suit in federal district court, alleging that the denial of funding for this grant program violated its Free Exercise rights. After the Church lost two rounds below, the Supreme Court granted cert.

That was back in January of 2015. The case languished on the Court’s docket for months and was only finally set for oral argument after newly-appointed Justice Neil Gorsuch joined the court. Many speculated that this delay signaled that the Court was deadlocked 4:4, and that Justice Gorsuch was needed to break the tie.

In Monday’s opinion, however, the final score told a different story. In a 7:2 opinion announced by Chief Justice Roberts, the Court held that Missouri’s categorical denial of the grant to the Church violated the Free Exercise Clause of the U.S. Constitution. The majority opinion distilled the case down to a simple principle: Missouri’s actions denied the Church a generally available benefit solely on account of the Church’s religious character. And in order to be able to do that, explained the Court, the Government needed a compelling interest. Because Missouri was unable to provide such an interest, the Court ruled in favor of the Church.

Justice Sotomayor, joined by Justice Ginsburg, wrote a strongly-worded dissent in which she chided the majority for overlooking what, in her opinion, was a federal Establishment Clause problem: “The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government provide public funds directly to a church.”2

Important Take-Aways from Trinity Lutheran: The Federal Establishment Clause Does Not Prohibit this Type of Grant Program

As Justice Sotomayor’s dissent complains, the Court declined to find that the federal Establishment Clause was implicated in this case. The Establishment Clause prohibits the Government from getting too entangled with a religious organization. It is often used as justification for the separation of Church and State, often to an extreme. Though the Court did not actually address this issue in detail, its opinion has implications for this doctrine: Providing this type of funding to a religious organization does not impermissibly underwrite religious exercise in a way that violates the Establishment Clause.

Important Take-Aways from Trinity Lutheran: Blaine Amendments Are Limited by the Free Exercise Clause

Missouri, like many other states in the country, had adopted a so-called “Blaine Amendment” to its State Constitution. These Amendments became popular in the wake of anti-Catholic sentiment and were originally intended to make sure Catholic schools did not receive government funding.3 But these Amendments were often written in such a way that they are used today to prohibit any government money flowing to religious organizations, or for religious purposes.

Missouri had cited its Blaine Amendment as the reason it felt compelled to deny the Church’s grant application. Essentially, the State contended that avoiding Establishment Clause-like concerns was the important reason for treating the Church differently. The Court rejected this rationale, noting that while States are free to erect a barrier between Church and State greater than the one put up by the federal Constitution, that ability is limited by the federal Free Exercise Clause. In other words, Missouri had gone so far in its efforts to keep church and state separated that it ended up violating the Church’s federal right to exercise its religion.

While many had speculated that the Court would make a definitive ruling on the constitutionality of Blaine Amendments, the Court’s opinion never uses the term directly. But practically, the Court did send a strong signal that when States use Blaine Amendments to justify treating a religious organization differently than a secular one in terms of a government benefit, they are limited by the Free Exercise Clause.

Important Take-Aways from Trinity Lutheran: Free Exercise Rights Can Be Violated by More than Outright Prohibition of Religious Activities

Another important discussion in the Court’s opinion was its rejection of Missouri’s argument that it wasn’t really burdening the Church’s free exercise by its actions. Missouri argued that it hadn’t prohibited the Church from exercising its religious rights—it wasn’t prohibiting it from holding services, from worshipping, or from prayer or evangelism. It had simply declined to allocate a subsidy the State had no obligation to provide in the first place. This argument is classically relied upon by proponents of strict separation of church and state. Under this argument, the Free Exercise Clause is limited to the traditional religious activities: if the state is not directly prohibiting a religious organization from doing these acts, it has not violated the Clause. The Court explained, however, that the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religious, not just outright prohibitions. Here, because the State refused to allow the Church, solely because it was a church, to compete with other organizations for the grant money, it had penalized the Church’s free exercise in a way that required a greater justification than the one it had given.

This is an expansive view of freedom of religion that is likely to impact future cases.

Important Take-Aways from Trinity Lutheran: The Impact of “Footnote 3”

Chief Justice Roberts inserted a footnote into the opinion that may impact how far-reaching the case actually is. The footnote stated: “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.”4 This footnote appears to be an attempt to limit the reach of the case, emphasizing that here, the issue was not over whether funding was going to a truly “religious” use; instead, the denial was because of religious character.

Justices Thomas and Gorsuch wrote concurrences that both took issue with footnote 3 of the Court’s opinion, and both declined to join that part of the opinion. Justice Gorsuch’s concurrence went to the heart of the issue. Is it really possible to draw the line between laws that discriminate on religious status and those that discriminate on religious use?

This question comes close to home for Colorado, as the Supreme Court also issued a grant, vacate, and remand (GVR) order in the Douglas County Choice Scholarship Program case. This order sends the case back to the Colorado Supreme Court to reconsider in light of Trinity Lutheran. Colorado also has a Blaine Amendment that affected the Colorado case.

Trinity Lutheran is an important victory for religious liberty with its recognition that the wall of separation between Church and State cannot create discrimination on religious status that impedes the free exercise of religion. This opinion is sure to have wide-reaching impact on future cases, but, as it so often does, the Court has left open for another day just how far that reach will extend.


582 U.S. ___ (2017).

Slip Op. at 1. (Sotomayor, J., dissenting).

3 See, e.g., Taxpayers for Pub. Educ. v. Douglas Cnty Sch. Dist.., 2015 CO 50, ¶¶ 96-97 (Eid, J., dissenting) (discussing history of Blaine Amendments).

Slip Op. at 14 n.3.

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