Everything, but Maybe Nothing: the Supreme Court's Important-but Fragile-decision in Trinity Lutheran Church of Columbia, Inc. v. Comer: 137 S. Ct. 2012 (2017)

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 525. Everything, but Maybe Nothing: The Supreme Court's Important-but Fragile-Decision in Trinity Lutheran Church of Columbia, Inc. v. Comer: 137 S. Ct. 2012 (2017)

Everything, but Maybe Nothing: The Supreme Court's Important-but Fragile-Decision in Trinity Lutheran Church of Columbia, Inc. v. Comer: 137 S. Ct. 2012 (2017)(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 526

II. Background ........................................... 527
A. The Religion Clauses .............................. 527
B. Appellate Opinion ................................. 530
C. Supreme Court Opinions .......................... 532
1. The Majority .................................. 532
2. The Concurrences ............................. 535
3. The Dissent ................................... 537

III. Analysis .............................................. 540
A. The Supreme Court's Holding in Trinity Lutheran Is Correct ............................................ 540
B. Implications for Future Cases ..................... 545
1. School Choice .................................. 545
2. FEMA Funds .................................. 548
C. The Majority's Status-Use Distinction Is Incorrect . 550
1. The Status-Use Distinction Is Inconsistent with Supreme Court Precedent ...................... 550
2. The Status-Use Distinction Is Inconsistent with Sound Discrimination Principles ............... 552

IV. Conclusion ............................................ 554

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I. INTRODUCTION

Trinity Lutheran Church operates a daycare in Columbia, Missouri.(fn1) The daycare includes a playground used by children in the day-care and other children in the community.(fn2) Coarse pea gravel covers most of the playground.(fn3) When children fall on the playground, the "unforgiving" gravel scrapes their knees.(fn4)

To make the playground safe for all children and accessible for children with disabilities, Trinity Lutheran applied for a grant with the Missouri Department of Natural Resources (the Department) in 2012.(fn5) The Department runs a resurfacing grant program, which enables schools and daycares to obtain softer, safer surfaces for playgrounds by reimbursing purchases of recycled-tire surfacing.(fn6) The grant program is competitive because the state does not have unlimited resources.(fn7) The Department ranks applicants and distributes funds to those ranking highest.(fn8)

In 2012, forty-four playgrounds applied, and the Department issued fourteen grants.(fn9) Fortunately for Trinity Lutheran, it scored among the highest applicants, ranking fifth.(fn10) Unfortunately for Trinity Lutheran and the children in its neighborhood, the Department still denied its application.(fn11)

The Department denied Trinity Lutheran because it is a church.(fn12)The Department cited Article I, Section 7 of Missouri's constitution, which forbids the state from funding religious organizations.(fn13) Trinity Lutheran sued, claiming the state violated the Free Exercise Clause of the First Amendment by categorically excluding churches from a pub-

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lic benefit program.(fn14) A district court granted summary judgment for the Department.(fn15)

This Note focuses on Trinity Lutheran's case. Part II traces the case's appellate history. Part II also summarizes how the Court has treated the religion clauses of the U.S. Constitution and how those clauses interact with each other. Part III argues the Supreme Court correctly held that Missouri's policy violated the Free Exercise Clause but contends that one aspect of the Court's reasoning-how it distinguishes between religious status and religious use-is unsound and should be abandoned. Part III also identifies two areas of current litigation affected by Trinity Lutheran Church v. Comer. Part IV describes how lower courts have reacted to Trinity Lutheran, questions the immediate impact of the case, and forecasts future Supreme Court action.

II. BACKGROUND

A. The Religion Clauses

The Establishment Clause and the Free Exercise Clause (the religion clauses) of the Constitution read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."(fn16) The religion clauses complement one another in their goal of protecting "freedom of religious belief and actions"(fn17) but achieve this goal in different ways. The Establishment Clause restrains government from specially "support[ing]" religion,(fn18) while the Free Exercise Clause restrains government from "impos[ing] special disabilities" on religion.(fn19)

Because government efforts to avoid improperly supporting religion may be construed as imposing special disabilities on religion and government efforts to avoid improperly disabling religion may be construed as supporting religion, the Court has observed that the religion clauses "tend to clash" with each other when "expanded to a logical extreme."(fn20) Given this tendency to clash, the Court has refused to ex-

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pand the clauses to their extremes. Instead, it has recognized that there is "room for play in the joints [between the religion clauses] productive of a benevolent neutrality" so long as the government action is not "expressly proscribed" by either of the religion clauses.(fn21)

So, under the "play in the joints doctrine," governments may mildly favor religion to avoid strongly disfavoring it and may mildly disfavor religion to avoid strongly favoring it. For instance, a public school may release religious students from class to receive religious instruction without marking them truant, even though that release would be incompatible with an Establishment Clause pressed to the "extremes," because doing so serves Free Exercise interests by accommodating religion.(fn22) In the other direction, a state may prohibit students from using scholarship funds to train for the ministry-even though that prohibition would be incompatible with a Free Exercise Clause pressed to the extremes-because doing so serves Establishment interests by preventing the government from sponsoring clergy.(fn23) Trinity Lutheran involves a state's effort to protect an Establishment Clause interest-avoiding state funding of churches(fn24)-and that effort's effect on a Free Exercise Clause interest-fully including religious persons in public benefit programs.(fn25)

On the Establishment interest in Trinity Lutheran, the Court has often evaluated the constitutionality of government funding of institutions owned by churches. In doing so, it has assessed funding differently based on context. Cases involving funding of parochial schools are "numerous" and "difficult to reconcile."(fn26) Meanwhile, cases involving funding of other religiously affiliated institutions are few and marked by deference.(fn27)

In Bradfield v. Roberts, the Court upheld a federal program that paid church-controlled hospitals to care for the poor.(fn28) The Court found church ownership "wholly immaterial" to the hospital's eligibility for federal funds.(fn29) In Bowen v. Kendrick, the Court upheld a competitive grant that funded institutions to solve problems of adolescent sexuality, even though many of the eventual grantees were religious

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organizations.(fn30) The Bowen Court applied the Lemon test.(fn31) It decided that the grant had a secular purpose-solving problems of adolescent sexuality-and that the government did not vitiate this secular purpose by including churches.(fn32) The Court also found that the program did not impermissibly advance religion because the government funded religious and nonreligious charitable organizations on a neutral basis without reference to religion.(fn33) In his opinion for the Court, Chief Justice Rehnquist emphasized that the Establishment Clause did not justify expunging religious organizations from public benefit programs.(fn34)

As for the Free Exercise interest in Trinity Lutheran, the Court has repeatedly held that the government cannot discriminate against religious people when distributing public benefits. The seminal case is Sherbert v. Verner,(fn35) where a Seventh-day Adventist lost her job for refusing to work on Saturday. South Carolina denied her unemployment benefits after determining she had refused work without good cause.(fn36) Writing for the majority, Justice Brennan explained that the "disqualification for benefits" deriving "solely from the practice of her religion" created an impermissible "burden on . . . free exercise" because it placed "unmistakable" pressure on her to forgo that practice.(fn37) Although Sherbert was construed narrowly in Employment Division v. Smith,(fn38) since Smith the Court has cited Sherbert and its progeny(fn39) for the proposition that governments may not discriminate in the distribution of benefits in a way that puts citizens to a choice "between their religious beliefs and receiving a government benefit."(fn40)

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Thus, the Court has allowed governments to fund religious organizations when they have done so in a way that is neutral to religion and has prohibited governments from discriminating against religion with public benefits.

B. Appellate Opinion

The Eighth Circuit affirmed the district court's dismissal of Trinity Lutheran's suit.(fn41) The Eighth Circuit described Trinity Lutheran's claims as "plainly facial attacks on Article I, § 7, of the Missouri Constitution"(fn42) and held that the Supreme Court's...