Trinity Lutheran Church v. Comer: Playing "in the Joints" and on the Playground

• Citation: Vol. 68 No. 6
• Publication year: 2019

Trinity Lutheran Church v. Comer: Playing "in the Joints" and on the Playground

Gabrielle Gollomp

TRINITY LUTHERAN CHURCH V. COMER: PLAYING "IN THE JOINTS" AND ON THE PLAYGROUND

Abstract

In Trinity Lutheran Church of Columbia v. Comer, the Supreme Court determined that a state could not deny a church generally available benefits because of its religious character. In doing so, the Trinity Lutheran decision disregarded Missouri's long-standing constitutional provision that denies state funds to religiously affiliated organizations and ignored Supreme Court precedent such as Locke v. Davey, which determined that states have discretion over the extent to which they want to use state tax dollars to support religion. Before Trinity Lutheran, the Supreme Court consistently recognized that there is a "play in the joints " between the Establishment Clause and Free Exercise Clause, meaning that some state government actions are neither prohibited by the Establishment Clause nor required by the Free Exercise Clause. Issues concerning tax exemptions and state funding are consistently held to fall within the "play in the joints." This "play in the joints" permits state and local governments to refuse to fund religious institutions, even if funding them would be constitutionally permissible.

The Trinity Lutheran decision significantly limits the freedom of state and local governments to have and enforce state constitutional provisions prohibiting the use of public funds to aid religion. This Comment argues that the Trinity Lutheran decision is problematic because it undercuts the federalism at work in Locke v. Davey. Locke v. Davey is the proper interpretation of the relationship between First Amendment religion clauses and state tax dollars because it recognizes the importance of state antiestablishment interests and federalism and leaves religious funding issues for the states to resolve. Thus, the Trinity Lutheran Court should have followed the decision in Locke, leaving state tax issues sub-constitutional.

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Introduction...........................................................................................1149

I. Overview of Federalism and Religious Liberty....................1152

A. Religious Liberty: From the Framing to the Incorporation of the Fourteenth Amendment..................................................... 1152
B. The Incorporation of the Free Exercise and Establishment Clauses ................................................................................... 1155
C. Recent Religion Clause Jurisprudence and the "Play in the Joints" .................................................................................... 1157
D. Locke v. Davey and State Funding of Religion...................... 1160

II. The Trinity Lutheran Church v. Comer Decision.....................1161

A. The Facts and History of Trinity Lutheran............................. 1162
B. The Supreme Court Decision.................................................. 1164
C. Implications Going Forward.................................................. 1169

III. How The Trinity Lutheran Decision Undermines Federalism....................................................................................1172

A. State Antiestablishment Interests and New Federalism.......... 1173
B. No Bald Favoritism or Clear Discrimination of Religion ...... 1177
C. Trinity Lutheran Compared to Locke v. Davey and Walz v. Tax Commission............................................................................ 1179
D. Trinity Lutheran as a "Heckler's Veto"................................. 1182
E. Other Federalism Concerns ................................................... 1184

Conclusion...............................................................................................1187

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Introduction

In Trinity Lutheran Church of Columbia v. Comer, a church that operates a preschool applied for a state grant that provides funds for resurfacing playgrounds with rubberized material.¹ Missouri denied Trinity Lutheran Church's application because Article I, Section 7 of the Missouri Constitution states, "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion."² Missouri refused to provide a grant to the church based on its state constitutional policy of denying grants to religiously affiliated organizations—a policy that is rooted in the fundamental principle that the government must not "establish" an official religion, but rather maintain the separation of church and state.³ In refusing the grant, the state was upholding a long-standing state policy of enforcing the state's antiestablishment interests. As the Eighth Circuit observed, Missouri "has a long history of maintaining a very high wall between church and state."⁴

However, contrary to Missouri's antiestablishment concerns, the Supreme Court in Trinity Lutheran determined that the state could not deny generally available benefits to the church because of its religious character.⁵ While the decision initially appears limited in scope due to its narrow holding about a rubberized playground surface and a cryptic footnote,⁶ the consequences for federalism are concerning. Trinity Lutheran significantly curtails the freedom of state governments to have and enforce their state constitutional provisions forbidding the use of public funds to aid religious institutions.

Federalism has been an essential part of American government since the time of the Framers.⁷ Federalism principles endeavor to ensure that the federal government holds specific enumerated powers and the states retain broad discretion over the remaining matters.⁸ Federalism is essential because it allows states to act as laboratories to formulate the most effective solutions to important

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problems the entire country faces.⁹ Furthermore, federalism allows individuals to choose to live in a state that closely aligns with their ideals and addresses these problems in a way they find desirable.¹⁰ Thus, if the federal government refuses to defer to state autonomy on important issues, it eliminates the variety of state solutions to local problems and diminishes individual freedom.¹¹

In recent decades, state constitutional law has reemerged as a source of individual rights independent of the federal Constitution.¹² As Justice Brennan noted, "more and more state courts are construing state constitutional counterparts of provisions of the Bill of Rights as guaranteeing citizens of their states even more protection than the federal provisions, even those identically phrased."¹³ Many state court decisions stand for the proposition that state constitutions can provide greater protection for individual rights and that the state constitutional provisions should be interpreted independently, instead of in relation to their federal counterparts.¹⁴ The independence of state constitutions has been particularly true with regard to state constitutional protections of religious freedom.¹⁵

Specifically, many state constitutions have stricter prohibitions of public funding of religion than is required by the federal Establishment Clause. Such prohibitions are not a violation of the constitutional right to "free exercise" of religion because, as the Supreme Court has consistently recognized, there is a "play in the joints" between the Establishment and Free Exercise Clauses of the First Amendment.¹⁶ That is, some government actions are neither prohibited by the Establishment Clause nor required by the Free Exercise Clause. This "play in the joints" permits state governments to deny funding to religious institutions even if funding them would be constitutionally permissible under the federal Establishment Clause.

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The leading case in this area of First Amendment jurisprudence, Locke v. Davey,¹⁷ recognizes the necessity of the "play in the joints" and the importance of federalism to protect state autonomy and antiestablishment interests without violating the federal religion clauses. In Locke, the Court held that a Washington state program was constitutional even though it offered state tax-funded scholarships to secular, but not religious, studies.¹⁸ Washington refused to provide scholarships to students pursuing degrees in vocational theology because a state constitutional provision prohibited the use of public funds for "any religious worship, exercise or instruction, or the support of any religious establishment."¹⁹ The Locke Court found that Washington could have permitted students to receive scholarships for religious studies and it would not have violated the Establishment Clause; yet at the same time, denying funds for a religious degree did not violate the Free Exercise Clause.²⁰ Thus, the Locke framework implies that tax questions fall within the "play in the joints" and gives states discretion regarding the extent to which they want to use state tax dollars to support religion.²¹

This Comment argues that the Supreme Court's decision in Trinity Lutheran is problematic because it undercuts the federalism at work in Locke. The Locke framework is the correct interpretation of the First Amendment's religion clauses because it recognizes the importance of federalism and state antiestablishment interests and leaves religious funding issues for state legislatures to resolve rather than the judiciary. To this end, this Comment proceeds in three Parts. Part I provides an overview of the historical role federalism has played in the First Amendment's religion clause jurisprudence, describes Supreme Court precedent in relation to government funding of religion, and explains the concept of the "play in the joints" between the Establishment Clause and Free Exercise Clause. Part II examines the Trinity Lutheran decision, how the Supreme Court distinguished the case from Locke, why the Court reached this result, and what the implications may be going forward...