Last Friday, the Supreme Court agreed to hear a case that could narrow the “play in the joints” between the requirements of the Free Exercise Clause and the prohibitions of the Establishment Clause. For years, the Supreme Court has acknowledged some room for state decision-making in allowing or restricting grants to religious actors in ways that neither violate the Establishment Clause by supporting religion nor violate the Free Exercise Clause by discriminating against religion. Now, a Lutheran preschool is asking the Supreme Court to restrict this “play in the joints” by limiting states’ ability to deny funds to religious institutions.
On appeal from the 8th Circuit, Trinity Lutheran Church of Columbia v. Pauley involves a program administered by the Missouri Department of Natural Resources (DNR), which provides funds for the purchase of recycled tires to resurface playgrounds. In 2012, Trinity
Lutheran Church applied for a DNR grant to replace the playground surface for the Learning Center, a private preschool and daycare operated by the church on church premises. DNR denied the grant citing Article I, § 7 of the Missouri Constitution, which states “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Such provisions limiting aid to religious institutions, sometimes called “Blaine Amendments,” exist in the majority of state constitutions.
Trinity sued DNR, claiming that the agency’s denial of funds violated the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise and Establishment Clauses of the First Amendment. In response, DNR filed a Motion to Dismiss, arguing that the agency’s actions were both required by the Missouri Constitution and permissible under the Federal Constitution.
Trinity’s complaint was careful to frame the issue as an as-applied challenge of the DNR’s actions, rather than a facial challenge to the state Constitution’s limits on religious funding. Nevertheless the Eight Circuit held that their claims were “plainly facial attacks on Article I, § 7,” and a Supreme Court decision on this matter could clearly threaten the administrability, if not the constitutionality, of Blaine amendments generally.
In defending its actions, Missouri could have argued that providing funds to Trinity would have violated the Establishment Clause, and that Trinity’s exclusion from the grant program was therefore not just acceptable but constitutionally mandated. Instead DNR took a more moderate position. It filed a Motion to Dismiss arguing that the denial of funds did not restrict Trinity’s practice of religion, and therefore could not constitute either a free exercise violation or religious discrimination. Furthermore, it stated that there was no precedent to construe the Establishment Clause’s “negative prohibition [on establishment of religion] as a basis for extending the right of a religiously affiliated group to secure state subsidies.”
The District Court granted DNR’s Motion to Dismiss, and the Eighth Circuit affirmed. Even though the question of whether awarding a grant to Trinity would have violated the Establishment Clause was not briefed, the Eighth Circuit commented in passing that it was “rather clear” under current Supreme Court precedent that Missouri could have provided such funds. However it held that Missouri was not compelled to do so under current First Amendment doctrine as “[n]o Supreme Court case… has granted such relief,” and it was not the place of a lower court to make such a “constitutional leap.”
Now that the Supreme Court has accepted the appeal, SCOTUS might be more than willing to make the leap.
The Supreme Court’s decision will turn in large part or how broadly or narrowly it construes its decision Locke v. Davey, a 2004 case that upheld Washington State’s denial of scholarship aid to students perusing a degree in devotional theology. Trinity argues that the Locke opinion should be read narrowly, and hinged on specific circumstances of the case including that the funds would have been used for an essentially religious endeavor and the exclusionary policy was not linked to a Blaine Amendment (which Trinity argues is rooted in anti-Catholic prejudice and therefore constitutionally suspect). DNR argues that Locke should control, and that the agency is not required to provide a direct grant of funds to Trinity.
The briefs aren’t even in yet so there’s only so much one can predict at this point. But this is sure to be a complex and interesting case that has the possibility of provoking as many constitutional questions as it answers.