In a historic ruling (Trinity Lutheran Church v. Comer, 2017 WL 2722410), the United States Supreme Court has ruled that a state program providing free playground surfacing to any school or preschool—except churches or other religious organizations—violated the First Amendment’s protection of the free exercise of religion.

The Trinity Lutheran Church Child Learning Center is a preschool and daycare center open throughout the year. Established as a nonprofit organization in 1980, the center merged with Trinity Lutheran Church in 1985 and operates under its auspices on church property. The center admits students of any religion, and enrollment stands at about 90 children ranging from ages two to five.

The center includes a playground that is equipped with the basic playground essentials: slides, swings, jungle gyms, monkey bars, and sandboxes. Almost the entire surface beneath and surrounding the play equipment is coarse “pea gravel.” Children often fall on the playground or tumble from the equipment. When they do, the gravel surface can cause injuries.

In 2012, the center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. Run by the Missouri Department of Natural Resources to reduce the number of used tires destined for landfills and dump sites, the program offers reimbursement grants to qualifying nonprofit organizations that purchase playground surfaces made from recycled tires. It is funded through a fee imposed on the sale of new tires in the state.

Due to limited resources, the department cannot offer grants to all applicants. Awards are given on a competitive basis to those scoring highest, based on several criteria, such as the poverty level of the population in the surrounding area and the applicant’s plan to promote recycling. When the center applied, the department maintained a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. That policy, in the department’s view, was compelled by the following provision in the Missouri Constitution:

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.

In its application, the center disclosed its status as a ministry of Trinity Lutheran Church and specified that the center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.” After describing the playground and the safety hazards posed by its current surface, the center detailed the anticipated benefits of the proposed project: increasing access to the playground for all children, including those with disabilities, by providing a surface compliant with the Americans with Disabilities Act; providing a safe, long-lasting, and resilient surface under the play areas; and improving Missouri’s environment by putting recycled tires to positive use. The center also noted that the benefits of a new surface would extend beyond its students to the local community, whose children often use the playground during non-school hours.

The center ranked fifth among the 44 applicants in the 2012 Scrap Tire Program. But despite its high score, the center was deemed categorically ineligible to receive a grant. In a letter rejecting the center’s application, the program director explained that, under the state’s constitution, the department could not provide financial assistance directly to a church.

Trinity Lutheran sued the director of the department in a federal district court. The church alleged that the department’s failure to approve the center’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violated the First Amendment’s guaranty of the free exercise of religion.

The district court dismissed the church’s lawsuit, and a federal appeals court affirmed. The appeals court concluded that while Missouri could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the United States Constitution, “that did not mean the Free Exercise [of religion] Clause compelled the State to disregard the antiestablishment principle reflected in its own Constitution.” Viewing a monetary grant to a religious institution as a “hallmark of an established religion,” the court concluded that the state could rely on an applicant’s religious status to deny its application. The church sought review by the United States Supreme Court.

In a 7-2 ruling, the Supreme Court ruled that the church’s exclusion from the tire program violated its constitutional right under the First Amendment to the free exercise of its religion. Writing for the majority, Chief Justice John Roberts began his opinion by observing that “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.”

The Court cited its 1947 ruling in Everson v. Board of Education, 330 U.S. 1 (1947), in which it upheld 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. The Court 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.”

The Court noted that in recent years it had rejected challenges to “neutral laws of general applicability” based on alleged violations of the free exercise of religion, but it stressed that “we have been careful to distinguish such laws from those that single out the religious for disfavored treatment.”

For example, in Employment Division v. Smith, 494 U.S. 872 (1990), the Court rejected a free exercise claim brought by two members of a Native American church denied unemployment benefits because they had violated drug laws by ingesting peyote for sacramental purposes. The Court concluded that “the Free Exercise Clause did not entitle the church members to a special dispensation from the general criminal laws on account of their religion. At the same time, we again made clear that the Free Exercise Clause did guard against the government’s imposition of special disabilities on the basis of religious views or religious status.”

Turning to the anti-religion policy of the Missouri Department of Natural Resources, the Court observed:

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. If the cases just described make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. . . .

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 . . . . 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, [our prior cases] say plainly that the State has punished the free exercise of religion: to condition the availability of benefits upon [a recipient’s] willingness to surrender his religiously impelled status effectively penalizes the free exercise of his constitutional liberties.

The department argued that merely declining to extend funds to Trinity Lutheran did not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights. Rather, it had simply declined to allocate to Trinity Lutheran a subsidy the state had no obligation to provide in the first place. And such a decision did not meaningfully burden the church’s free exercise rights.

The Court conceded that the department had not “criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel.” But, as the department itself acknowledged, 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” [Sherbert v. Verner, 374 U.S. 398 (1963)]. The Court noted that

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 imposition of such a condition . . . inevitably deters or discourages the exercise of First Amendment rights. 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.

The Court noted that “only a state interest of the highest order” could justify the department’s discriminatory policy, and no such interest existed. Instead, “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.”

Nearly 200 years ago, a legislator urged the Maryland Assembly to adopt a bill that would end the State’s disqualification of Jews from public office: “If, on account of my religious faith, I am subjected to disqualifications, from which others are free . . . I cannot but consider myself a persecuted man. . . . An odious exclusion from any of the benefits common to the rest of my fellow-citizens, is a persecution, differing only in degree, but of a nature equally unjustifiable with that, whose instruments are chains and torture.”

The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.

This case recognizes, as the Court noted, that churches are members of the community, too, and cannot be excluded from government benefit programs solely on the basis of their religious status. The Court stressed that it had “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.”

This ruling reinforces the constitutional validity of church participation in many kinds of government programs generally available to other non-religious groups. These include, as the Court ruled in the Everson case (noted above), some forms of government assistance to school children, including those attending private secular and religious schools.

Sister publication Christianity Today provided additional news coverage of the Supreme Court’s ruling. To go deeper on matters of church and state, check out the “Liability & Church and State Issues” section of ChurchLawAndTax.com’s Legal Library.

Richard R. Hammar is senior editor of the Church Law & Tax Report newsletter and ChurchLawAndTax.com.