When may the government discriminate against religious institutions?

Say the government has decided to provide certain benefits to various applicants. For instance, it might give federal disaster recovery funds to people whose property was damaged in a terrorist attack. Or it might compensate property owners for mosquito abatement expenditures. Or it might—as in Trinity Lutheran Church v. Comer, decided Monday by the Supreme Court—offer playground owners funds to cover their surfaces with a springy rubbery material (often made from recycled tires) instead of soil or gravel.

When that happens, may the government deliberately exclude churches and other religious institutions, precisely because they are religious institutions? The court has just said "generally no," in an opinion written by Chief Justice John G. Roberts Jr. and joined by the other opinions plus Justice Elena Kagan. (Justices Neil M. Gorsuch and Clarence Thomas would have said, basically, "almost always no.") Justice Stephen G. Breyer agreed as to health-and-safety programs. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, arguing that the government often must exclude religious institutions from such programs.

1. The facts: Missouri "offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires." Trinity Lutheran Church applied "for its preschool and daycare center," and was ranked fifth out of 44 applicants, under the state's largely objective application ranking program; but though the state awarded 14 grants, it excluded Trinity precisely because it was a church. The state's view was that the state constitution's establishment clause, which reads "That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship," mandated such exclusion.

2. The majority's anti-discrimination principle:

a. The majority opinion took the view that the federal free exercise clause generally forbids discrimination against religious institutions—including in administering benefit problems—and that this federal rule trumped the state constitutional provision:

The Free Exercise Clause "protect[s] religious observers against unequal treatment" and subjects to the strictest scrutiny laws that target the religious for "special disabilities" based on their "religious status." Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest "of the highest order."

In Everson v. Board of Education (1947), for example, we upheld against an Establishment Clause challenge a New Jersey law enabling a local school district to reimburse parents for the public transportation costs of sending their children to public and private schools, including parochial schools. In the course of ruling that the Establishment Clause allowed New Jersey to extend that public benefit to all its citizens regardless of their religious belief, we explained that a State "cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation."

Three decades later, in McDaniel v. Paty (1978), the Court struck down under the Free Exercise Clause a Tennessee statute disqualifying ministers from serving as delegates to the State's constitutional convention … In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment …

Like the disqualification statute in McDaniel, the Department's policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: "To condition the availability of benefits … upon willingness to … surrender[] his religiously impelled effectively penalizes the free exercise of his constitutional liberties."

[And] the Free Exercise Clause protects against "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions." As the Court put it more than 50 years ago, "[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege."

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character … The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. Trinity Lutheran is a member of the community too, and the State's decision to exclude it for purposes of this public program must withstand the strictest scrutiny …

b. In Locke v. Davey (2004), the Supreme Court did uphold a state college scholarship problem that let eligible students use the scholarships both at public and private universities, for any majors they wanted, but excluding devotional theology. But that, the majority in today's case said, was different:

This Court … [concluded in Locke that] Washington's selective funding program was not comparable to the free exercise violations found in the "Lukumi line of cases," including those striking down laws requiring individuals to "choose between their religious beliefs and receiving a government benefit." … According to the Court, the State had "merely chosen not to fund a distinct category of instruction." Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.

The Court in Locke also stated that Washington's choice was in keeping with the State's anti-establishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could "think of few areas in which a State's anti-establishment interests come more into play." The claimant in Locke sought funding for an "essentially religious endeavor … akin to a religious calling as well as an academic pursuit," and opposition to such funding "to support church leaders" lay at the historic core of the Religion Clauses. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.

Relying on Locke, the Department nonetheless emphasizes Missouri's similar constitutional tradition of not furnishing taxpayer money directly to churches. But Locke took account of Washington's anti-establishment interest only after determining, as noted, that the scholarship program did not "require students to choose between their religious beliefs and receiving a government benefit."

As the Court put it, Washington's scholarship program went "a long way toward including religion in its benefits." Students in the program were free to use their scholarships at "pervasively religious schools." Davey could use his scholarship to pursue a secular degree at one institution while studying devotional theology at another. He could also use his scholarship money to attend a religious college and take devotional theology courses there. The only thing he could not do was use the scholarship to pursue a degree in that subject.

In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.

Four members of the majority—Roberts, Kagan, Justices Anthony M. Kennedy, Samuel A. Alito Jr.—added that "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."

c. Nor can the program be saved, the majority concluded, on the theory that Missouri has a compelling interest in excluding religious institutions under its state constitution:

The Department offers nothing more than Missouri's policy preference for skating as far as possible from religious establishment concerns. In the face of the clear infringement on free exercise before us, that interest cannot qualify as compelling … "[T]he state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause."

2. Gorsuch, joined by Thomas, almost entirely agreed with the rest of the majority, but would have gone further:

The Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line.

Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him). Often enough the same facts can be described both ways.

Neither do I see why the First Amendment's Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). And this Court has long explained that government may not "devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices." Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. I don't see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.

For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke … [C]an it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion's claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here. [For these reasons, Justices Gorsuch and Thomas suggested that Locke itself was wrongly decided, and should be reconsidered in a case in which the parties so urged.-EV]

3. Breyer concurred in the judgment, reasoning that such discrimination is generally impermissible in health-and-safety programs:

I agree with much of what the Court says and with its result. But I find relevant, and would emphasize, the particular nature of the "public benefit" here at issue. The Court stated in Everson that "cutting off church schools from" such "general government services as ordinary police and fire protection … is obviously not the purpose of the First Amendment." Here, the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference.

The fact that the program at issue ultimately funds only a limited number of projects cannot itself justify a religious distinction. Nor is there any administrative or other reason to treat church schools differently. The sole reason advanced that explains the difference is faith. And it is that last-mentioned fact that calls the Free Exercise Clause into play. We need not go further. Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.

4. Sotomayor, joined by Ginsburg, dissented, in a long opinion—nearly twice as long as the majority—which I can only briefly sketch:

a. Mandated exclusion of churches: First, they argued that the federal establishment clause itself requires excluding religious institutions from such programs

The government may not directly fund religious exercise … Nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship. A house of worship exists to foster and further religious exercise. There, a group of people, bound by common religious beliefs, comes together "to shape its own faith and mission." Within its walls, worshipers gather to practice and reaffirm their faith. And from its base, the faithful reach out to those not yet convinced of the group's beliefs. When a government funds a house of worship, it underwrites this religious exercise.

Tilton v. Richardson (1971), held as much. The federal program at issue provided construction grants to colleges and universities but prohibited grantees from using the funds to construct facilities "'used for sectarian instruction or as a place for religious worship'" or "'used primarily in connection with any part of the program of a school or department of divinity.'" It allowed the Federal Government to recover the grant's value if a grantee violated this prohibition within twenty years of the grant. The Court unanimously agreed that this time limit on recovery violated the Establishment Clause. "[T]he original federal grant w[ould] in part have the effect of advancing religion," a plurality explained, if a grantee "converted or otherwise used mote religious interests" after twenty years. Accordingly, the Court severed the twenty-year limit, ensuring that program funds would be put to secular use and thereby bringing the program in line with the Establishment Clause.

This case is no different. The Church seeks state funds to improve the Learning Center's facilities, which, by the Church's own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church's faith to the children of nonmembers. The Church's playground surface—like a Sunday school room's walls or the sanctuary's pews—are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.

True, this Court has found some direct government funding of religious institutions to be consistent with the Establishment Clause. But the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. The Church has not and cannot provide such assurances here. See Committee for Public Ed. & Religious Liberty v. Nyquist (1973) ("No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions"). The Church has a religious mission, one that it pursues through the Learning Center. The playground surface cannot be confined to secular use any more than lumber used to frame the Church's walls, glass stained and used to form its windows, or nails used to build its altar.

The majority didn't discuss this, because "The parties agree that the Establishment Clause of that Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program." If you're interested in a response to Sotomayor's establishment clause argument, though, you might have a look at my students' and my amicus brief on behalf of World Vision, Inc. in this case, which deals with precisely this issue. (Thanks to the students, Ryan Azad, Mike Romeo and Jacob Waschak, who worked on the brief.)

b. Allowed exclusion of churches: The dissent also argued that, even if a state could choose to include religious institutions in the program, it could choose to exclude them:

[The] government room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.

Invoking this principle, this Court has held that the government may sometimes relieve religious entities from the requirements of government programs. A State need not, for example, require nonprofit houses of worship to pay property taxes. It may instead "spar[e] the exercise of religion from the burden of property taxation levied on private profit institutions" and spare the government "the direct confrontations and conflicts that follow in the train of those legal processes" associated with taxation. See Walz v. Tax Comm'n (1970).

Nor must a State require nonprofit religious entities to abstain from making employment decisions on the basis of religion. It may instead avoid imposing on these institutions a "[f]ear of potential liability t affect the way" it "carried out what it understood to be its religious mission" and on the government the sensitive task of policing compliance. Corporation of Presiding Bishop of Church v. Amos (1987). But the government may not invoke the space between the Religion Clauses in a manner that "devolve[s] into an unlawful fostering of religion."

Invoking this same principle, this Court has held that the government may sometimes close off certain government aid programs to religious entities. The State need not, for example, fund the training of a religious group's leaders, those "who will preach their beliefs, teach their faith, and carry out their mission." It may instead avoid the historic "anti-establishment interests" raised by the use of "taxpayer funds to support church leaders." Locke … Missouri has decided that the unique status of houses of worship requires a special rule when it comes to public funds … Missouri's decision, which has deep roots in our Nation's history, reflects a reasonable and constitutional judgment …

Those who fought to end the public funding of religion based their opposition on a powerful set of arguments, all stemming from the basic premise that the practice harmed both civil government and religion. The civil government, they maintained, could claim no authority over religious belief. For them, support for religion compelled by the State marked an overstep of authority that would only lead to more.

Equally troubling, it risked divisiveness by giving religions reason to compete for the State's beneficence. Faith, they believed, was a personal matter, entirely between an individual and his god. Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily. Over and over, these arguments gained acceptance and led to the end of state laws exacting payment for the support of religion. … Like the use of public dollars for ministers at issue in Locke, turning over public funds to houses of worship implicates serious anti-establishment and free exercise interests …

Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice …

* * *

My thinking, for whatever it's worth, is that Gorsuch and Thomas are right, and that Scalia and Thomas were right in dissenting in Locke v. Davey—discriminatory exclusion of religion from funding programs is itself a free exercise clause violation. I think that discriminatory benefits for religion in funding programs and similar programs are also unconstitutional, as the court generally concluded in Texas Monthly, Inc. v. Bullock (1989); indeed, I think Sotomayor is mistaken in suggesting that religion-only tax exemptions would generally be constitutional: As Brennan's lead opinion in Texas Monthly noted, Walz "emphasized that the benefits derived by religious organizations flowed to a large number of nonreligious groups as well. Indeed, were those benefits confined to religious organizations, they could not have appeared other than as state sponsorship of religion; if that were so, we would not have hesitated to strike them down for lacking a secular purpose and effect."

But in any event, whatever you think is the right answer, the majority opinion is a powerful precedent for equal treatment for religious institutions, in the many benefit programs administered by the modern welfare state.