by Ira C. Lupu, F. Elwood and Eleanor Davis Professor Emeritus of Law and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, George Washington University Law School
In Trinity Lutheran Church (“TLC”) v. Comer, the Supreme Court confronted a novel question – does the Free Exercise Clause require a state to treat houses of worship identically with other non-profit entities seeking a discretionary grant aimed at enhancing health and safety? By a 7-2 vote, the Court said yes. The number of votes for the result, however, masks very deep divisions among its supporters about Religion Clause and federalism principles.
The case involved Missouri’s program for grants to subsidize the cost of resurfacing playgrounds with materials from scrap rubber tires. TLC had applied for such a grant, and the Missouri Department of Public Resources denied the grant solely on the basis of a provision in the State Constitution that prohibits public funding of houses of worship.
In an opinion by Chief Justice Roberts, the Court brushed aside concerns of federalism and church-state separation. Instead, the opinion focuses on discrimination based on “religious identity,” and asserts that state interests in church-state separation cannot justify such discrimination. If a state creates a public benefit, even if not widely available, it may not categorically exclude houses of worship. In this case, the purpose of the grant – playground safety – reinforced this approach.
The opinion fails to engage seriously with the Religion Clause principles implicated by these facts. The three decisions on which the Court relies did NOT involve discretionary benefits OR houses of worship. In Widmar v. Vincent and Rosenberger v. Rectors and Visitors, the Free Exercise Clause played no part whatsoever. And all three, including McDaniel v. Paty, involved denial of separate constitutional rights to religious persons or groups, not the denial of funds to religious entities.