Religious Freedom: Trinity Lutheran Church of Columbia v. Comer

By Steven D. Schwinn

Published April 2017

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Can a State Exclude a Church from an Otherwise Neutral and Secular Grant Program Just Because It Is a Church?


Trinity Lutheran Church of Columbia applied for a grant from the state of Missouri Scrap Tire Grant Program to resurface a playground at its affi liated preschool and daycare center. The state Department of Natural Resources (DNR) denied funding, however, only because Trinity Lutheran was a church. The DNR cited a state constitutional provision that prohibits the state from spending any state money, directly or indirectly, in aid of a religion.


As a general matter, the Constitution does not require states to subsidize the exercise of individual rights, including the free exercise of religion. Indeed, state subsidies of religion may in some cases violate the Establishment Clause. But on the other hand, a state cannot single out a religion, or religion generally, for disfavored treatment. This would violate the Free Exercise Clause. This case sits at the intersection of the two religion clauses— an area the Court calls the “play in the joints”—and the Equal Protection Clause.


Did Missouri violate the Free Exercise Clause and the Equal Protection Clause when it excluded Trinity Lutheran Church from its otherwise neutral and secular Scrap Tire Grant Program only because Trinity Lutheran was a church?


Trinity Lutheran Church of Columbia operates a licensed preschool and daycare program called the Learning Center. The Learning Center previously operated as an independent nonprofit, but it merged into Trinity Lutheran in 1985. Since its merger, the Learning Center has operated as a church ministry, which means that it teaches a Christian worldview and incorporates daily religious instruction into its programs. Despite its religious bent, however, the Learning Center maintains an open admissions policy. It enrolls about ninety students on average, aged two through five.

The Learning Center has a playground for the children who attend. Children from the surrounding community also use the playground after school hours and on the weekends.

In 212, Trinity Lutheran applied for a grant from the Missouri Scrap Tire Grant Program, administered by the state Department of Natural Resources (DNR). The program provides reimbursement grants for nonprofit organizations to purchase rubber pour-in-place playground surfaces made from recycled tires. The state funds the program through a fee on the sale of new tires. (For more information on the program, visit the DNR’s website, at http://dnr., and the program application, available at

Applying its neutral grant criteria, the DNR ranked Trinity Lutheran’s application fifth out of forty-four applications submitted in 2012. But the DNR nevertheless denied Trinity Lutheran a grant solely because it is a church. In denying the grant, the DNR wrote “that Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.’”

Trinity Lutheran sued in federal court, arguing that the DNR’s policy of denying scrap tire grants to churches violated the Free Exercise, Equal Protection, Free Speech, and Establishment Clauses of the First and Fourteenth Amendments, as well as Article I, Section 7, of the Missouri Constitution. Trinity Lutheran’s suit focused only on the DNR’s policy as it applied to the church. It did not challenge Article I, Section 7, of the Missouri Constitution on its face.

The district court dismissed the complaint as a matter of law. The United States Court of Appeals for the Eighth Circuit affirmed. Trinity Lutheran brought this appeal.


As a general matter, the government is not required to subsidize the exercise of individual rights, including the free exercise of religion. Indeed, government subsidies of religion may in some cases violate the Establishment Clause.

But on the other hand, the government cannot target a particular religion, or religion generally, for disfavored treatment. When the government does this, the courts apply the strict scrutiny test—the most rigorous test known to constitutional law—and strike the government action under the Free Exercise Clause. (Government action that is neutral with regard to religion, even if it has an incidental effect on religion, is subject only to rational basis review.)

There is some space, however, between the Establishment Clause and the Free Exercise Clause. The Court refers to this as “play in the joints” between the two. For example, in Locke v. Davey, 540 U.S. 712 (2004), a case very similar to this one, the Court ruled that the two clauses permitted a state to exclude from an otherwise neutral state scholarship program a student who studied devotional theology. (The state’s constitution prohibited even indirect state funding of religious instruction that would prepare a student for the ministry.) The Court wrote that the state undoubtedly could fund the student without violating the Establishment Clause (because the program funded students engaged in secular studies, and therefore would not have singled out students studying devotional theology for preferential treatment). But at the same time it ruled that the state did not have to fund the student in order to comply with the Free Exercise Clause (because, again, the clause does not require the state to subsidize religion; it only requires the state not to interfere with religion). As a result of this play in the joints, the Court upheld the state’s exclusion of the devotional theology student.

The parties frame their arguments around these principles and the Locke case.

Trinity Lutheran argues first that the DNR’s categorical exclusion of religious preschools and daycares from the Scrap Tire Grant Program amounts to discrimination based on religious status in violation of the Free Exercise and Equal Protection Clauses. The church says that the DNR’s policy is neither neutral with regard to religion nor generally applicable, because it imposes especial burdens on only those nonprofits with a religious identity. Trinity Lutheran contends that the policy is therefore subject to strict scrutiny, and that it cannot withstand strict scrutiny analysis. Moreover, the church claims that the Missouri Constitution cannot override the Free Exercise and Equal Protection Clauses of the United States Constitution. In short, the church maintains that “[e]xcluding Trinity Lutheran from the Scrap Tire Program here exhibits an undeniable hostility to religion that offends the Constitution’s essential mandate of religious neutrality.”

Trinity Lutheran argues next that this case is distinguishable from Locke. The church says that the Court in Locke rejected a claim to compel a state to fund religious activity—the religious training of clergy. But in contrast, Trinity Lutheran contends that it merely seeks to participate in a generally available public program for a reason that has nothing to do with religion, “to protect children from cuts and bruises on the playground.” The church therefore asserts that Locke does not govern this case.

The DNR counters that nothing about its policy infringes on Trinity Lutheran’s right to engage in its religious exercise. The DNR says that Trinity Lutheran “remains free, without any public subsidy, to worship, teach, pray, and practice any other aspect of its faith however it wishes”—just without state financial support. The DNR claims that its decision not to fund Trinity Lutheran is well supported by the Free Exercise Clause and Supreme Court precedent: “The Free Exercise Clause requires that the State not interfere with Trinity Lutheran’s religious activities; it does not require the State to provide funding.”

The DNR argues next that its decision did not violate equal protection. It claims that the decision advanced legitimate public interests, including treating religious denominations the same (by not funding any of them), respecting state citizens’ “concerns of conscience,” and protecting religious institutions from government intrusion, and therefore satisfied rational basis review. The DNR says that its decision should not be subject to strict scrutiny; according to the DNR, its standard treats all religions the same and only distinguishes between religious and nonreligious organizations and therefore only needs to be rational. The DNR contends that the Court has never applied strict scrutiny to this kind of situation under the Equal Protection Clause absent an accompanying First Amendment violation.


The Missouri Constitution’s provision prohibiting state funding, directly or indirectly, to any religion is one of nearly 40 like state constitutional provisions nationwide. These provisions, sometimes called “Blaine amendments,” were born out of anti-Catholic animosity in the 19th century. (The anti-Catholic origin of the Blaine amendments plays a bit part in the arguments: Trinity Lutheran and some of its amici contend that the religious bigotry behind these amendments fatally infects Missouri’s provision.) Today, they operate to exclude all religious organizations from the full range of otherwise neutral and secular state funding programs. For supporters, they erect a strict wall of separation between church and state. For opponents, they represent officially sanctioned state hostility to religion that excludes religions from state funding opportunities only because they are religions.

The Eighth Circuit ruled that this case was governed by Locke. But other circuits have disagreed, and the Eighth Circuit itself split sharply on the question (in both the panel ruling and the equally divided denial of rehearing en banc). Indeed, Locke is not necessarily on all fours with this case: the student in Locke sought to use state funding for an overtly religious purpose (the study of devotional theology), while Trinity Lutheran seeks to use state funding for a secular purpose (repaving its playground) that less directly supports religion. In this way, this case is a test of just how far the Locke principle stretches.

On another level, the case is also about religious discrimination in the area of state funding. In particular, given that the government is not required to subsidize the free exercise of religion, does a state disfavor a religion only when it actively impedes religious exercise, or does it also disfavor a religion when it excludes religion from a state benefit? The Court in Locke took the former approach—that a state only violates the Free Exercise Clause when it actively impedes religious exercise. But Justices Scalia and Thomas, in dissent in Locke, took the latter position—that a state also violates the Free Exercise Clause by excluding religion from a state benefit. (Justice Scalia famously wrote, “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”) Justices Scalia and Thomas’s approach probably still only represents a minority position—even with the Court’s personnel changes since Locke—but the issue may nevertheless be important in this case. (Significantly, Justice Kennedy also joined the Locke majority.)