Trinity Lutheran v. Comer, June 26, 2017

 “…[T]he 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.”

– Chief Justice Roberts for the majority


In a 7-2 decision, the U.S. Supreme Court decided the case in Trinity Lutheran Church’s favor.

That is, the Court held that Missouri’s refusal to allow Trinity Lutheran to participate in a state grant program (the church would receive monetary reimbursement) to fund rubberized playground surfaces for its kindergarten playground from recycled tires, simply because it was a church, is an unconstitutional violation of the “free exercise of religion.”


The majority opinion was written by Chief Justice John Roberts. While acknowledging the general tension between the Establishment Clause (“Congress shall make no law respecting an establishment of religion…”) and the Free Exercise Clause (“… or prohibiting the free exercise thereof…”), the majority opinion observes that this is not a case of “subsidizing” religion, but is consistent with a long line of cases dealing with the separation of church and state on the issue of public benefits:

  • “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….”
  • “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 held it does not pass that test.)
  • “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.”


And finally, the Court’s conclusion:

“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.”

Justices Thomas, Gorsuch and Breyer also wrote separate concurring opinions.

Justice Sotomayor wrote a dissent in which Justice Ginsburg joined.


Can a state deny the benefits of a secular state program ― involving recycled rubber for playground surfaces ― to a preschool/daycare center because it is owned by a church?


The First Amendment requires the government to do two things, which sometimes appear to be in opposition to one another with respect to its treatment of religion. On the one hand, the government cannot aid religion in such a way that it is found to be “establishing” (i.e., promoting, endorsing) a religion; but, on the other hand, it cannot be hostile to it in such a way that it ends up going to the other extreme of prohibiting the “free exercise” of religion.

These types of questions in specific cases can get difficult, and there are lots of Supreme Court decisions on various situations that come up. For example, the U.S. Supreme Court has looked at such issues as tax exemptions for churches, and held that those types of government-granted benefits are permitted by the First Amendment.

But what if the government withholds a benefit or program from a church because it fears it might, indeed, be “establishing” or supporting a religion in violation of the First Amendment?  Can the government be cautious in those situations, constitutionally speaking, or is there a point where “being cautious” results in “hostility” toward religion, creating a “free exercise” violation, as well as a discriminatory “equal protection” violation under the Fourteenth Amendment?

These are the types of complicated religion cases that make it to the courts on a regular basis.


Missouri conducted a statewide program that provided grants to qualified recipients to purchase recycled rubber material specifically made for playground surfaces. Missouri admitted the preschool/daycare center would qualify for the grant ― except for the fact that it is owned by a church. The state relied on its own constitutional provision, which forbids public monies from, directly or indirectly, being used “to aid” any church, sect, denomination, priest, pastor, etc. However, even state constitutions cannot contradict the U.S. Constitution, including the First Amendment’s religion clauses.


Governments should not be allowed to discriminate against religion when it comes to access to secular programs or services, under the pretense of observing a state version of the so-called separation of church and state.