Emory Law News Center

Analysis: Trinity Lutheran v. Comer
By Mark Goldfeder | July 19, 2017

Goldfeder

Mark Goldfeder:
Senior lecturer, Spruill Family Fellow in Law and Religion

The facts in Trinity Lutheran v. Comer were undisputed: The Missouri Department of Natural Resources has a grant program that provides funds for qualifying organizations to purchase recycled tires to resurface playgrounds. Trinity Lutheran Church operates a preschool/daycare center called The Learning Center. Trinity applied for the grant to redo the preschool playground, and was denied on the grounds that Article I Section 7 of the Missouri Constitution states that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section, or denomination of religion.”

What makes the decision in Trinity Lutheran so interesting is that while the facts were really clear, the justices seemed generally unable to agree on what exactly the case was about or how to frame it.

  • Was it about making sure religious school children have access to the same health and safety benefits (like safer playgrounds) as children at other schools? (Justice Breyer);
  • Or was it about a church being denied funding for a specific and fully secular playground program simply because of their status? (Chief Justice Roberts, with Justices Kennedy, Alito and Kagan joining in full);
  • Was it the slightly broader story of a religious group being denied a benefit just because they are religious? (Justices Thomas and Gorsuch, joining Roberts in all but one narrowing footnote)
  • Or was it the government being asked to directly fund religious activity, which is constitutionally inappropriate? (Justices Sotomayor and Ginsburg, dissenting)

Three of those questions have fairly easy answers: Children in religious schools should have the same safety benefits as children in secular schools; you cannot deny funding for a fully secular playground program just because of the religious status of the owners; and no, the government should not directly fund religious activity. (The disagreement between the majority and dissents was partly on the question whether or not this was really fully secular or somewhat religious in nature.) A majority of the Justices (seven, in fact) was comfortable saying that there was no direct funding of any religious activity going on in this case. 

The fourth question is where it gets interesting. Footnote 3 in Chief Justice Roberts’ opinion gave lower courts the ability to read this ruling narrowly. It says:

“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.”

Justices Thomas and Gorsuch took issue with the footnote in their concurring opinions, worrying that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.”

Of course, it is entirely possible that this ambiguity is why Roberts intentionally included the footnote, i.e. in order to sway more justices to join the main position, and it may even have helped to draw in Justices Kennedy, and Kagan and Breyer in concurrence with the judgment. The footnote, however, did not get a majority and so the question of whether the government can keep religious institutions out of other types of neutral secular public benefit programs remains open.

In particular, court watchers had been looking for this ruling to have an effect on the long-running tuition vouchers debate. The Supreme Court, in Zelman v Simmons-Harris (2002) said that as a matter of federal law tuition vouchers that de facto support religious schools are not in violation of the Establishment Clause, so long as they are religiously neutral and parents have the right to pick the school. States, however, are still free to operate in what the Court in Locke v Davey (2004) called the ‘space between’ the religion clauses, i.e. while the Establishment Clause could allow vouchers, states are not necessarily violating anyone’s Free Exercise rights if they do choose to ban them for being akin to state-funding of religion.

This case could have answered the state voucher question definitively, but instead, Instead, proponents of tuition vouchers for private (including religious) schools have celebrated the opinion for condemning the denial of a public benefit on the basis of religious identity, while at the same time opponents of tuition voucher programs, many of whom worry about diverting money from public schools, have pointed to the footnote as an explicit affirmation that the Court was not talking about those kinds of programs, in particular because vouchers are often used at schools whose programming includes clearly religious content that would arguably fall right under the Footnote 3 category of “religious uses of funding.” A ruling against that type of funding, they argue, would likely garner majority support (the justices of the main opinion today plus Justices Sotomayor and Ginsburg).

The truth, however, is that while advocates on both sides are gearing up for the next battle, the war over private school tuition might already be over. The very same day that Trinity was decided, a Georgia Supreme Court Case, Gaddy v. Georgia Department of Revenue, reaffirmed that tax-credit scholarship programs are fully constitutional, because the scholarship funds are private donations and not public money. So far, 17 states are using tax-credit scholarships, and the unanimous decisions of everyone from the U.S. Supreme Court (Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011)) to the numerous state supreme courts that have dealt with the issue have all protected these tax credits by agreeing that they are not government expenditures.

So while Trinity is an interesting case that reaffirms an important position in First Amendment jurisprudence, i.e. that you cannot single out religious people or groups for unfavorable treatment, those who are looking to fight the broader battle over school choice should probably stop concentrating on the religious/secular distinction, and look harder at the public/private split.

Mark Goldfeder, senior lecturer, Spruill Family Fellow in Law and Religion