Trinity Lutheran Church of Columbia, Inc. v. Comer , 198 L. Ed. 2d 551 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER, DIRECTOR, MISSOURI DEPARTMENT OF
NATURAL RESOURCES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 15–577. Argued April 19, 2017—Decided June 26, 2017
The Trinity Lutheran Church Child Learning Center is a Missouri pre-
school and daycare center. Originally established as a nonprofit or-
ganization, the Center later merged with Trinity Lutheran Church
and now operates under its auspices on church property. Among the
facilities at the Center is a playground, which has a coarse pea gravel
surface beneath much of the play equipment. 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 Pro-
gram. The program, run by the State’s Department of Natural Re-
sources, offers reimbursement grants to qualifying nonprofit organi-
zations that install playground surfaces made from recycled tires.
The Department had a strict and express policy of denying grants to
any applicant owned or controlled by a church, sect, or other religious
entity. Pursuant to that policy, the Department denied the Center’s
application. In a letter rejecting that application, the Department
explained that under Article I, Section 7 of the Missouri Constitution,
the Department could not provide financial assistance directly to a
church. The Department ultimately awarded 14 grants as part of the
2012 program. Although the Center ranked fifth out of the 44 appli-
cants, it did not receive a grant because it is a church.
Trinity Lutheran sued in Federal District Court, alleging that the
Department’s failure to approve its application violated the Free Ex-
ercise Clause of the First Amendment. The District Court dismissed
the suit. The Free Exercise Clause, the court stated, prohibits the
government from outlawing or restricting the exercise of a religious
practice, but it generally does not prohibit withholding an affirmative
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Syllabus
benefit on account of religion. The District Court likened the case be-
fore it to Locke v. Davey, 540 U.S. 712, where this Court upheld
against a free exercise challenge a State’s decision not to fund de-
grees in devotional theology as part of a scholarship program. The
District Court held that the Free Exercise Clause did not require the
State to make funds available under the Scrap Tire Program to Trini-
ty Lutheran. A divided panel of the Eighth Circuit affirmed. The
fact that the State could award a scrap tire grant to Trinity Lutheran
without running afoul of the Establishment Clause of the Federal
Constitution, the court ruled, did not mean that the Free Exercise
Clause compelled the State to disregard the broader antiestablish-
ment principle reflected in its own Constitution.
Held: The Department’s policy violated the rights of Trinity Lutheran
under the Free Exercise Clause of the First Amendment by denying
the Church an otherwise available public benefit on account of its re-
ligious status. Pp. 6–15.
(a) 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. Thus, in McDaniel v. Paty,
435 U.S. 618, the Court struck down a Tennessee statute disqualify-
ing ministers from serving as delegates to the State’s constitutional
convention. A plurality recognized that such a law discriminated
against McDaniel by denying him a benefit solely because of his “sta-
tus as a ‘minister.’ ” Id., at 627. In recent years, when rejecting free
exercise challenges to neutral laws of general applicability, the Court
has been careful to distinguish such laws from those that single out
the religious for disfavored treatment. See, e.g., Lyng v. Northwest
Indian Cemetery Protective Assn., 485 U.S. 439; Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872; and
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520. It has
remained a fundamental principle of this Court’s free exercise juris-
prudence that laws imposing “special disabilities on the basis of . . .
religious status” trigger the strictest scrutiny. Id., at 533. Pp. 6–9.
(b) The Department’s policy expressly discriminates against other-
wise eligible recipients by disqualifying them from a public benefit
solely because of their religious character. Like the disqualification
statute in McDaniel, the Department’s policy puts Trinity Lutheran
to a choice: It may participate in an otherwise available benefit pro-
gram or remain a religious institution. When the State conditions a
benefit in this way, McDaniel says plainly that the State has imposed
a penalty on the free exercise of religion that must withstand the
most exacting scrutiny. 435 U.S., at 626, 628.
The Department contends that simply declining to allocate to Trin-
ity Lutheran a subsidy the State had no obligation to provide does
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Syllabus
not meaningfully burden the Church’s free exercise rights. Absent
any such burden, the argument continues, the Department is free to
follow the State’s antiestablishment objection to providing funds di-
rectly to a church. But, as even the Department acknowledges, the
Free Exercise Clause protects against “indirect coercion or penalties
on the free exercise of religion, not just outright prohibitions.” Lyng,
485 U.S., at 450. Trinity Lutheran is not claiming any entitlement
to a subsidy. It is asserting a right to participate in a government
benefit program without having to disavow its religious character.
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. Pp. 9–11.
(c) The Department tries to sidestep this Court’s precedents by ar-
guing that this case is instead controlled by Locke v. Davey. It is not.
In Locke, the State of Washington created a scholarship program to
assist high-achieving students with the costs of postsecondary educa-
tion. Scholarship recipients were free to use state funds at accredited
religious and non-religious schools alike, but they could not use the
funds to pursue a devotional theology degree. At the outset, the
Court made clear that Locke was not like the cases in which the
Court struck down laws requiring individuals to “choose between
their religious beliefs and receiving a government benefit.” 540 U.S.,
at 720–721. Davey was not denied a scholarship because of who he
was; he was denied a scholarship because of what he proposed to do.
Here there is no question that Trinity Lutheran was denied a grant
simply because of what it is—a church.
The Court in Locke also stated that Washington’s restriction on the
use of its funds was in keeping with the State’s antiestablishment in-
terest in not using taxpayer funds to pay for the training of clergy, an
“essentially religious endeavor,” id., at 721. Here, nothing of the sort
can be said about a program to use recycled tires to resurface play-
grounds. At any rate, the Court took account of Washington’s anties-
tablishment interest only after determining that the scholarship pro-
gram did not “require students to choose between their religious
beliefs and receiving a government benefit.” Id., at 720–721. There
is no dispute that Trinity Lutheran is put to the choice between being
a church and receiving a government benefit. Pp. 11–14.
(d) The Department’s discriminatory policy does not survive the
“most rigorous” scrutiny that this Court applies to laws imposing
special disabilities on account of religious status. Lukumi, 508 U.S.,
at 546. That standard demands a state interest “of the highest order”
to justify the policy at issue. McDaniel, 435 U.S., at 628 (internal
quotation marks omitted). Yet the Department offers nothing more
4 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Syllabus
than Missouri’s preference for skating as far as possible from reli-
gious establishment concerns. In the face of the clear infringement
on free exercise before the Court, that interest cannot qualify as com-
pelling. Pp. 14–15.
788 F.3d 779, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, except as to foot-
note 3. KENNEDY, ALITO, and KAGAN, JJ., joined that opinion in full,
and THOMAS and GORSUCH, JJ., joined except as to footnote 3. THOMAS,
J., filed an opinion concurring in part, in which GORSUCH, J., joined.
GORSUCH, J., filed an opinion concurring in part, in which THOMAS, J.,
joined. BREYER, J., filed an opinion concurring in the judgment. SO-
TOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR,
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2017]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to footnote 3.
The Missouri Department of Natural Resources offers
state grants to help public and private schools, nonprofit
daycare centers, and other nonprofit entities purchase
rubber playground surfaces made from recycled tires.
Trinity Lutheran Church applied for such a grant for its
preschool and daycare center and would have received
one, but for the fact that Trinity Lutheran is a church.
The Department had a policy of categorically disqualifying
churches and other religious organizations from receiving
grants under its playground resurfacing program. The
question presented is whether the Department’s policy
violated the rights of Trinity Lutheran under the Free
Exercise Clause of the First Amendment.
I
A
The Trinity Lutheran Church Child Learning Center is
a preschool and daycare center open throughout the year
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
to serve working families in Boone County, Missouri, and
the surrounding area. Established as a nonprofit organi-
zation 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 age
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. Youngsters, of course, often fall on the
playground or tumble from the equipment. And when
they do, the gravel can be unforgiving.
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 State’s 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 im-
posed on the sale of new tires in the State.
Due to limited resources, the Department cannot offer
grants to all applicants and so awards them on a competi-
tive basis to those scoring highest based on several crite-
ria, 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 had
a strict and express policy of denying grants to any appli-
cant owned or controlled by a church, sect, or other reli-
gious entity. That policy, in the Department’s view, was
compelled by Article I, Section 7 of the Missouri Constitu-
tion, which provides:
“That no money shall ever be taken from the public
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Opinion of the Court
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 dis-
crimination 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.” App. to Pet. for Cert.
131a. 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 of 1990; 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 Article I, Section 7
of the Missouri Constitution, the Department could not
provide financial assistance directly to a church.
The Department ultimately awarded 14 grants as part
of the 2012 program. Because the Center was operated by
Trinity Lutheran Church, it did not receive a grant.
4 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
B
Trinity Lutheran sued the Director of the Department
in 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, violates the Free Exercise Clause of
the First Amendment. Trinity Lutheran sought declara-
tory and injunctive relief prohibiting the Department from
discriminating against the Church on that basis in future
grant applications.
The District Court granted the Department’s motion to
dismiss. The Free Exercise Clause, the District Court
stated, prohibits the government from outlawing or re-
stricting the exercise of a religious practice; it generally
does not prohibit withholding an affirmative benefit on
account of religion. The District Court likened the De-
partment’s denial of the scrap tire grant to the situation
this Court encountered in Locke v. Davey, 540 U.S. 712
(2004). In that case, we upheld against a free exercise
challenge the State of Washington’s decision not to fund
degrees in devotional theology as part of a state scholar-
ship program. Finding the present case “nearly indistin-
guishable from Locke,” the District Court held that the
Free Exercise Clause did not require the State to make
funds available under the Scrap Tire Program to religious
institutions like Trinity Lutheran. Trinity Lutheran
Church of Columbia, Inc. v. Pauley, 976 F. Supp. 2d 1137,
1151 (WD Mo. 2013).
The Court of Appeals for the Eighth Circuit affirmed.
The court recognized that it was “rather clear” that Mis-
souri could award a scrap tire grant to Trinity Lutheran
without running afoul of the Establishment Clause of the
United States Constitution. Trinity Lutheran Church of
Columbia, Inc. v. Pauley, 788 F.3d 779, 784 (2015). But,
the Court of Appeals explained, that did not mean the
Free Exercise Clause compelled the State to disregard the
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Opinion of the Court
antiestablishment principle reflected in its own Constitu-
tion. 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. Id., at 785 (quot-
ing Locke, 540 U.S., at 722; some internal quotation
marks omitted).
Judge Gruender dissented. He distinguished Locke on
the ground that it concerned the narrow issue of funding
for the religious training of clergy, and “did not leave
states with unfettered discretion to exclude the religious
from generally available public benefits.” 788 F.3d, at
791 (opinion concurring in part and dissenting in part).
Rehearing en banc was denied by an equally divided
court.
We granted certiorari sub nom. Trinity Lutheran
Church of Columbia, Inc. v. Pauley, 577 U. S. ___ (2016),
and now reverse.1
——————
1 In April 2017, the Governor of Missouri announced that he had
directed the Department to begin allowing religious organizations to
compete for and receive Department grants on the same terms as
secular organizations. That announcement does not moot this case.
We have said that such voluntary cessation of a challenged practice
does not moot a case unless “subsequent events ma[ke] it absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation
marks omitted). The Department has not carried the “heavy burden” of
making “absolutely clear” that it could not revert to its policy of exclud-
ing religious organizations. Ibid. The parties agree. See Letter from
James R. Layton, Counsel for Respondent, to Scott S. Harris, Clerk of
Court (Apr. 18, 2017) (adopting the position of the Missouri Attorney
General’s Office that “there is no clearly effective barrier that would
prevent the [Department] from reinstating [its] policy in the future”);
Letter from David A. Cortman, Counsel for Petitioner, to Scott S.
Harris, Clerk of Court (Apr. 18, 2017) (“[T]he policy change does noth-
ing to remedy the source of the [Department’s] original policy—the
Missouri Supreme Court’s interpretation of Article 1, §7 of the Missouri
Constitution”).
6 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
II
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.” The parties agree
that the Establishment Clause of that Amendment does
not prevent Missouri from including Trinity Lutheran in
the Scrap Tire Program. That does not, however, answer
the question under the Free Exercise Clause, because we
have recognized that there is “play in the joints” between
what the Establishment Clause permits and the Free
Exercise Clause compels. Locke, 540 U.S., at 718 (inter-
nal quotation marks omitted).
The Free Exercise Clause “protect[s] religious observers
against unequal treatment” and subjects to the strictest
scrutiny laws that target the religious for “special disabili-
ties” based on their “religious status.” Church of Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 542 (1993)
(internal quotation marks omitted). Applying that basic
principle, this Court has repeatedly confirmed that deny-
ing a generally available benefit solely on account of reli-
gious identity imposes a penalty on the free exercise of
religion that can be justified only by a state interest “of
the highest order.” McDaniel v. Paty, 435 U.S. 618, 628
(1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406
U.S. 205, 215 (1972)).
In Everson v. Board of Education of Ewing, 330 U.S. 1
(1947), for example, we upheld against an Establishment
Clause challenge 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. In the course of
ruling that the Establishment Clause allowed New Jersey
to extend that public benefit to all its citizens regardless of
their religious belief, we explained that a State “cannot
hamper its citizens in the free exercise of their own reli-
gion. Consequently, it cannot exclude individual Catho-
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Opinion of the Court
lics, Lutherans, Mohammedans, Baptists, Jews, Method-
ists, Non-believers, Presbyterians, or the members of any
other faith, because of their faith, or lack of it, from receiv-
ing the benefits of public welfare legislation.” Id., at 16.
Three decades later, in McDaniel v. Paty, the Court
struck down under the Free Exercise Clause a Tennessee
statute disqualifying ministers from serving as delegates
to the State’s constitutional convention. Writing for the
plurality, Chief Justice Burger acknowledged that Ten-
nessee had disqualified ministers from serving as legisla-
tors since the adoption of its first Constitution in 1796,
and that a number of early States had also disqualified
ministers from legislative office. This historical tradition,
however, did not change the fact that the statute discrimi-
nated against McDaniel by denying him a benefit solely
because of his “status as a ‘minister.’ ” 435 U.S., at 627.
McDaniel could not seek to participate in the convention
while also maintaining his role as a minister; to pursue
the one, he would have to give up the other. In this way,
said Chief Justice Burger, the Tennessee law “effectively
penalizes the free exercise of [McDaniel’s] constitutional
liberties.” Id., at 626 (quoting Sherbert v. Verner, 374
U.S. 398, 406 (1963); internal quotation marks omitted).
Joined by Justice Marshall in concurrence, Justice Bren-
nan added that “because the challenged provision requires
[McDaniel] to purchase his right to engage in the ministry
by sacrificing his candidacy it impairs the free exercise of
his religion.” McDaniel, 435 U.S., at 634.
In recent years, when this Court has rejected free exer-
cise challenges, the laws in question have been neutral
and generally applicable without regard to religion. We
have been careful to distinguish such laws from those that
single out the religious for disfavored treatment.
For example, in Lyng v. Northwest Indian Cemetery
Protective Association, 485 U.S. 439 (1988), we held that
the Free Exercise Clause did not prohibit the Government
8 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
from timber harvesting or road construction on a particu-
lar tract of federal land, even though the Government’s
action would obstruct the religious practice of several
Native American Tribes that held certain sites on the tract
to be sacred. Accepting that “[t]he building of a road or
the harvesting of timber . . . would interfere significantly
with private persons’ ability to pursue spiritual fulfillment
according to their own religious beliefs,” we nonetheless
found no free exercise violation, because the affected
individuals were not being “coerced by the Government’s
action into violating their religious beliefs.” Id., at 449.
The Court specifically noted, however, that the Govern-
ment action did not “penalize religious activity by denying
any person an equal share of the rights, benefits, and
privileges enjoyed by other citizens.” Ibid.
In Employment Division, Department of Human Re-
sources of Oregon v. Smith, 494 U.S. 872 (1990), we re-
jected a free exercise claim brought by two members of a
Native American church denied unemployment benefits
because they had violated Oregon’s drug laws by ingesting
peyote for sacramental purposes. Along the same lines as
our decision in Lyng, we held 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 govern-
ment’s imposition of “special disabilities on the basis of
religious views or religious status.” 494 U.S., at 877
(citing McDaniel, 435 U.S. 618).2
——————
2 This is not to say that any application of a valid and neutral law of
general applicability is necessarily constitutional under the Free
Exercise Clause. Recently, in Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC, 565 U.S. 171 (2012), this Court held that
the Religion Clauses required a ministerial exception to the neutral
prohibition on employment retaliation contained in the Americans with
Disabilities Act. Distinguishing Smith, we explained that while that
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Opinion of the Court
Finally, in Church of Lukumi Babalu Aye, Inc. v. Hia-
leah, we struck down three facially neutral city ordinances
that outlawed certain forms of animal slaughter. Mem-
bers of the Santeria religion challenged the ordinances
under the Free Exercise Clause, alleging that despite their
facial neutrality, the ordinances had a discriminatory
purpose easy to ferret out: prohibiting sacrificial rituals
integral to Santeria but distasteful to local residents. We
agreed. Before explaining why the challenged ordinances
were not, in fact, neutral or generally applicable, the
Court recounted the fundamentals of our free exercise
jurisprudence. A law, we said, may not discriminate
against “some or all religious beliefs.” 508 U.S., at 532.
Nor may a law regulate or outlaw conduct because it is
religiously motivated. And, citing McDaniel and Smith,
we restated the now-familiar refrain: The Free Exercise
Clause protects against laws that “ ‘impose[ ] special dis-
abilities on the basis of . . . religious status.’ ” 508 U.S., at
533 (quoting Smith, 494 U.S., at 877); see also Mitchell v.
Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (not-
ing “our decisions that have prohibited governments from
discriminating in the distribution of public benefits based
upon religious status or sincerity” (citing Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995);
Lamb’s Chapel v. Center Moriches Union Free School Dist.,
508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263
(1981))).
III
A
The Department’s policy expressly discriminates against
otherwise eligible recipients by disqualifying them from a
——————
case concerned government regulation of physical acts, “[t]he present
case, in contrast, concerns government interference with an internal
church decision that affects the faith and mission of the church itself.”
565 U.S., at 190.
10 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
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. Lukumi,
508 U.S., at 546. This conclusion is unremarkable in light
of our prior decisions.
Like the disqualification statute in McDaniel, the De-
partment’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 Lu-
theran is free to continue operating as a church, just as
McDaniel was free to continue being a minister. But that
freedom comes at the cost of automatic and absolute ex-
clusion 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, McDaniel says plainly
that the State has punished the free exercise of religion:
“To condition the availability of benefits . . . upon [a recip-
ient’s] willingness to . . . surrender[ ] his religiously im-
pelled [status] effectively penalizes the free exercise of his
constitutional liberties.” 435 U.S., at 626 (plurality opin-
ion) (alterations omitted).
The Department contends that merely declining to
extend funds to Trinity Lutheran does not prohibit the
Church from engaging in any religious conduct or other-
wise exercising its religious rights. In this sense, says the
Department, its policy is unlike the ordinances struck
down in Lukumi, which outlawed rituals central to San-
teria. Here the Department has simply declined to allo-
cate to Trinity Lutheran a subsidy the State had no obli-
gation to provide in the first place. That decision does not
meaningfully burden the Church’s free exercise rights.
And absent any such burden, the argument continues, the
Department is free to heed the State’s antiestablishment
objection to providing funds directly to a church. Brief for
Respondent 7–12, 14–16.
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Opinion of the Court
It is true the Department has 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 acknowledges, the Free Exercise
Clause protects against “indirect coercion or penalties on
the free exercise of religion, not just outright prohibitions.”
Lyng, 485 U.S., at 450. 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 privi-
lege.” Sherbert, 374 U.S., at 404; see also McDaniel, 435
U.S., at 633 (Brennan, J., concurring in judgment) (The
“proposition—that the law does not interfere with free
exercise because it does not directly prohibit religious
activity, but merely conditions eligibility for office on its
abandonment—is . . . squarely rejected by precedent”).
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
upon even a gratuitous benefit inevitably deter[s] or dis-
courage[s] the exercise of First Amendment rights.” Sher-
bert, 374 U.S., at 405. 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. Cf. Northeastern Fla. Chapter, Associated Gen.
Contractors of America v. Jacksonville, 508 U.S. 656, 666
(1993) (“[T]he ‘injury in fact’ is the inability to compete on
an equal footing in the bidding process, not the loss of a
contract”). 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.
B
The Department attempts to get out from under the
12 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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Opinion of the Court
weight of our precedents by arguing that the free exercise
question in this case is instead controlled by our decision
in Locke v. Davey. It is not. In Locke, the State of Wash-
ington created a scholarship program to assist high-
achieving students with the costs of postsecondary educa-
tion. The scholarships were paid out of the State’s general
fund, and eligibility was based on criteria such as an
applicant’s score on college admission tests and family
income. While scholarship recipients were free to use the
money at accredited religious and non-religious schools
alike, they were not permitted to use the funds to pursue a
devotional theology degree—one “devotional in nature or
designed to induce religious faith.” 540 U.S., at 716
(internal quotation marks omitted). Davey was selected
for a scholarship but was denied the funds when he re-
fused to certify that he would not use them toward a devo-
tional degree. He sued, arguing that the State’s refusal to
allow its scholarship money to go toward such degrees
violated his free exercise rights.
This Court disagreed. It began by explaining what was
not at issue. Washington’s selective funding program was
not comparable to the free exercise violations found in the
“Lukumi line of cases,” including those striking down laws
requiring individuals to “choose between their religious
beliefs and receiving a government benefit.” Id., at 720–
721. At the outset, then, the Court made clear that Locke
was not like the case now before us.
Washington’s restriction on the use of its scholarship
funds was different. According to the Court, the State had
“merely chosen not to fund a distinct category of instruc-
tion.” Id., at 721. Davey was not denied a scholarship
because of who he was; he was denied a scholarship be-
cause of what he proposed to do—use the funds to prepare
for the ministry. Here there is no question that Trinity
Lutheran was denied a grant simply because of what it
is—a church.
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
The Court in Locke also stated that Washington’s choice
was in keeping with the State’s antiestablishment interest
in not using taxpayer funds to pay for the training of
clergy; in fact, the Court could “think of few areas in which
a State’s antiestablishment interests come more into
play.” Id., at 722. The claimant in Locke sought funding
for an “essentially religious endeavor . . . akin to a reli-
gious calling as well as an academic pursuit,” and opposi-
tion to such funding “to support church leaders” lay at the
historic core of the Religion Clauses. Id., at 721–722.
Here nothing of the sort can be said about a program to
use recycled tires to resurface playgrounds.
Relying on Locke, the Department nonetheless empha-
sizes Missouri’s similar constitutional tradition of not
furnishing taxpayer money directly to churches. Brief for
Respondent 15–16. But Locke took account of Washing-
ton’s antiestablishment interest only after determining, as
noted, that the scholarship program did not “require stu-
dents to choose between their religious beliefs and receiv-
ing a government benefit.” 540 U.S., at 720–721 (citing
McDaniel, 435 U.S. 618). As the Court put it, Washing-
ton’s scholarship program went “a long way toward includ-
ing religion in its benefits.” Locke, 540 U.S., at 724.
Students in the program were free to use their scholar-
ships at “pervasively religious schools.” Ibid. Davey could
use his scholarship to pursue a secular degree at one
institution while studying devotional theology at another.
Id., at 721, n. 4. He could also use his scholarship money
to attend a religious college and take devotional theology
courses there. Id., at 725. The only thing he could not do
was use the scholarship to pursue a degree in that subject.
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
14 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
Opinion of the Court
apply.3
C
The State in this case expressly requires Trinity Lu-
theran to renounce its religious character in order to
participate in an otherwise generally available public
benefit program, for which it is fully qualified. Our cases
make clear that such a condition imposes a penalty on the
free exercise of religion that must be subjected to the
“most rigorous” scrutiny. Lukumi, 508 U.S., at 546.4
Under that stringent standard, only a state interest “of
the highest order” can justify the Department’s discrimi-
natory policy. McDaniel, 435 U.S., at 628 (internal quota-
tion marks omitted). Yet the Department offers nothing
more than Missouri’s policy preference for skating as far
as possible from religious establishment concerns. Brief
for Respondent 15–16. In the face of the clear infringe-
ment on free exercise before us, that interest cannot qual-
ify as compelling. As we said when considering Missouri’s
same policy preference on a prior occasion, “the state
interest asserted here—in achieving greater separation of
church and State than is already ensured under the Es-
tablishment Clause of the Federal Constitution—is limited
by the Free Exercise Clause.” Widmar, 454 U.S., at 276.
The State has pursued its preferred policy to the point of
expressly denying a qualified religious entity a public
benefit solely because of its religious character. Under our
precedents, that goes too far. The Department’s policy
——————
3 This case involves express discrimination based on religious identity
with respect to playground resurfacing. We do not address religious
uses of funding or other forms of discrimination.
4 We have held that “a law targeting religious beliefs as such is never
permissible.” Lukumi, 508 U.S., at 533; see also McDaniel v. Paty, 435
U.S. 618, 626 (1978) (plurality opinion). We do not need to decide
whether the condition Missouri imposes in this case falls within the
scope of that rule, because it cannot survive strict scrutiny in any
event.
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
violates the Free Exercise Clause.5
* * *
Nearly 200 years ago, a legislator urged the Maryland
Assembly to adopt a bill that would end the State’s dis-
qualification 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, differ-
ing only in degree, but of a nature equally unjustifia-
ble with that, whose instruments are chains and tor-
ture.” Speech by H. M. Brackenridge, Dec. Sess. 1818,
in H. Brackenridge, W. Worthington, & J. Tyson,
Speeches in the House of Delegates of Maryland, 64
(1829).
The Missouri Department of Natural Resources has not
subjected anyone to chains or torture on account of reli-
gion. 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.
The judgment of the United States Court of Appeals for
the Eighth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
——————
5 Based on this holding, we need not reach the Church’s claim that
the policy also violates the Equal Protection Clause.
Cite as: 582 U. S. ____ (2017) 1
THOMAS , J., ,concurring
THOMAS J., concurring
in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR,
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2017]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring in part.
The Court today reaffirms 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,” if at all, “only by a state interest ‘of the high-
est order.’ ” Ante, at 6. The Free Exercise Clause, which
generally prohibits laws that facially discriminate against
religion, compels this conclusion. See Locke v. Davey, 540
U.S. 712, 726–727 (2004) (Scalia, J., dissenting).
Despite this prohibition, the Court in Locke permitted a
State to “disfavor . . . religion” by imposing what it deemed
a “relatively minor” burden on religious exercise to ad-
vance the State’s antiestablishment “interest in not fund-
ing the religious training of clergy.” Id., at 720, 722, n. 5,
725. The Court justified this law based on its view that
there is “ ‘play in the joints’ ” between the Free Exercise
Clause and the Establishment Clause—that is, that “there
are some state actions permitted by the Establishment
Clause but not required by the Free Exercise Clause.” Id.,
at 719. Accordingly, Locke did not subject the law at issue
to any form of heightened scrutiny. But it also did not
suggest that discrimination against religion outside the
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
THOMAS , J., ,concurring
THOMAS J., concurring
in part
limited context of support for ministerial training would
be similarly exempt from exacting review.
This Court’s endorsement in Locke of even a “mil[d]
kind,” id., at 720, of discrimination against religion re-
mains troubling. See generally id., at 726–734 (Scalia, J.,
dissenting). But because the Court today appropriately
construes Locke narrowly, see Part III–B, ante, and be-
cause no party has asked us to reconsider it, I join nearly
all of the Court’s opinion. I do not, however, join footnote
3, for the reasons expressed by JUSTICE GORSUCH, post,
p. 1 (opinion concurring in part).
Cite as: 582 U. S. ____ (2017) 1
GORSUCH, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR,
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2017]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
concurring in part.
Missouri’s law bars Trinity Lutheran from participating
in a public benefits program only because it is a church. I
agree this violates the First Amendment and I am pleased
to join nearly all of the Court’s opinion. I offer only two
modest qualifications.
First, the Court leaves open the possibility a useful
distinction might be drawn between laws that discrimi-
nate on the basis of religious status and religious use. See
ante, at 12. Respectfully, I harbor doubts about the stabil-
ity of such a line. Does a religious man say grace before
dinner? Or does a man begin his meal in a religious man-
ner? Is it a religious group that built the playground? Or
did a group build the playground so it might be used to
advance a religious mission? The distinction blurs in
much the same way the line between acts and omissions
can blur when stared at too long, leaving us to ask (for
example) whether the man who drowns by awaiting the
incoming tide does so by act (coming upon the sea) or
omission (allowing the sea to come upon him). See Cruzan
v. Director, Mo. Dept. of Health, 497 U.S. 261, 296 (1990)
(Scalia, J., dissenting). Often enough the same facts can
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
GORSUCH, J., concurring in part
be described both ways.
Neither do I see why the First Amendment’s Free Exer-
cise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward
belief (or status). Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990). And
this Court has long explained that government may not
“devise mechanisms, overt or disguised, designed to perse-
cute or oppress a religion or its practices.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547
(1993). Generally the government may not force people to
choose between participation in a public program and
their right to free exercise of religion. See Thomas v.
Review Bd. of Indiana Employment Security Div., 450
U.S. 707, 716 (1981); Everson v. Board of Ed. of Ewing,
330 U.S. 1, 16 (1947). I don’t see why it should matter
whether we describe that benefit, say, as closed to Luther-
ans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.
For these reasons, reliance on the status-use distinction
does not suffice for me to distinguish Locke v. Davey, 540
U.S. 712 (2004). See ante, at 12. In that case, this Court
upheld a funding restriction barring a student from using
a scholarship to pursue a degree in devotional theology.
But can it really matter whether the restriction in Locke
was phrased in terms of use instead of status (for was it a
student who wanted a vocational degree in religion? or
was it a religious student who wanted the necessary edu-
cation for his chosen vocation?). If that case can be correct
and distinguished, it seems it might be only because of the
opinion’s claim of a long tradition against the use of public
funds for training of the clergy, a tradition the Court
correctly explains has no analogue here. Ante, at 13.
Second and for similar reasons, I am unable to join the
footnoted observation, ante, at 14, n. 3, that “[t]his case
involves express discrimination based on religious identity
Cite as: 582 U. S. ____ (2017) 3
GORSUCH, J., concurring in part
with respect to playground resurfacing.” Of course the
footnote is entirely correct, but I worry that some might
mistakenly read it to suggest that only “playground resur-
facing” cases, or only those with some association with
children’s safety or health, or perhaps some other social
good we find sufficiently worthy, are governed by the legal
rules recounted in and faithfully applied by the Court’s
opinion. Such a reading would be unreasonable for our
cases are “governed by general principles, rather than
ad hoc improvisations.” Elk Grove Unified School Dist. v.
Newdow, 542 U.S. 1, 25 (2004) (Rehnquist, C. J., concur-
ring in judgment). And the general principles here do not
permit discrimination against religious exercise—whether
on the playground or anywhere else.
Cite as: 582 U. S. ____ (2017) 1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR,
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2017]
JUSTICE BREYER, concurring in the judgment.
I agree with much of what the Court says and with its
result. But I find relevant, and would emphasize, the
particular nature of the “public benefit” here at issue. Cf.
ante, at 11 (“Trinity Lutheran . . . asserts a right to partic-
ipate in a government benefit program”); ante, at 12 (re-
ferring to precedent “striking down laws requiring indi-
viduals to choose between their religious beliefs and
receiving a government benefit” (internal quotation marks
omitted)); ante, at 10 (referring to Trinity Lutheran’s
“automatic and absolute exclusion from the benefits of a
public program”); ante, at 9–10 (the State’s policy disquali-
fies “otherwise eligible recipients . . . from a public benefit
solely because of their religious character”); ante, at 6–7
(quoting the statement in Everson v. Board of Ed. of
Ewing, 330 U.S. 1, 16 (1947), that the State “cannot
exclude” individuals “because of their faith” from “receiv-
ing the benefits of public welfare legislation”).
The Court stated in Everson that “cutting off church
schools from” such “general government services as ordi-
nary police and fire protection . . . is obviously not the
purpose of the First Amendment.” 330 U.S., at 17–18.
Here, the State would cut Trinity Lutheran off from par-
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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BREYER, J., concurring in judgment
ticipation in a general program designed to secure or to
improve the health and safety of children. I see no signifi-
cant difference. The fact that the program at issue ulti-
mately funds only a limited number of projects cannot
itself justify a religious distinction. Nor is there any ad-
ministrative or other reason to treat church schools differ-
ently. The sole reason advanced that explains the differ-
ence is faith. And it is that last-mentioned fact that calls
the Free Exercise Clause into play. We need not go fur-
ther. Public benefits come in many shapes and sizes. I
would leave the application of the Free Exercise Clause to
other kinds of public benefits for another day.
Cite as: 582 U. S. ____ (2017) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR,
MISSOURI DEPARTMENT OF NATURAL
RESOURCES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 26, 2017]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
To hear the Court tell it, this is a simple case about
recycling tires to resurface a playground. The stakes are
higher. This case is about nothing less than the relation-
ship between religious institutions and the civil govern-
ment—that is, between church and state. The Court today
profoundly changes that relationship by holding, for the
first time, that the Constitution requires the government
to provide public funds directly to a church. Its decision
slights both our precedents and our history, and its rea-
soning weakens this country’s longstanding commitment
to a separation of church and state beneficial to both.
I
Founded in 1922, Trinity Lutheran Church (Church)
“operates . . . for the express purpose of carrying out the
commission of . . . Jesus Christ as directed to His church
on earth.” Our Story, http://www.trinity-lcms.org/story
(all internet materials as last visited June 22, 2017). The
Church uses “preaching, teaching, worship, witness, ser-
vice, and fellowship according to the Word of God” to
carry out its mission “to ‘make disciples.’ ” Mission,
2 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
http://www.trinity-lcms.org/mission (quoting Matthew
28:18–20). The Church’s religious beliefs include its desire
to “associat[e] with the [Trinity Church Child] Learning
Center.” App. to Pet. for Cert. 101a. Located on Church
property, the Learning Center provides daycare and pre-
school for about “90 children ages two to kindergarten.”
Id., at 100a.
The Learning Center serves as “a ministry of the
Church and incorporates daily religion and developmen-
tally appropriate activities into . . . [its] program.” Id., at
101a. In this way, “[t]hrough the Learning Center, the
Church teaches a Christian world view to children of
members of the Church, as well as children of non-member
residents” of the area. Ibid. These activities represent the
Church’s “sincere religious belief . . . to use [the Learning
Center] to teach the Gospel to children of its members, as
well to bring the Gospel message to non-members.” Ibid.
The Learning Center’s facilities include a playground,
the unlikely source of this dispute. The Church provides
the playground and other “safe, clean, and attractive”
facilities “in conjunction with an education program struc-
tured to allow a child to grow spiritually, physically, so-
cially, and cognitively.” Ibid. This case began in 2012
when the Church applied for funding to upgrade the play-
ground’s pea gravel and grass surface through Missouri’s
Scrap Tire Program, which provides grants for the pur-
chase and installation of recycled tire material to resur-
face playgrounds. The Church sought $20,000 for a
$30,580 project to modernize the playground, part of its
effort to gain state accreditation for the Learning Center
as an early childhood education program. Missouri denied
the Church funding based on Article I, §7, of its State
Constitution, which prohibits the use of public funds “in
aid of any church, sect, or denomination of religion.”
Cite as: 582 U. S. ____ (2017) 3
SOTOMAYOR, J., dissenting
II
Properly understood then, this is a case about whether
Missouri can decline to fund improvements to the facilities
the Church uses to practice and spread its religious views.
This Court has repeatedly warned that funding of exactly
this kind—payments from the government to a house of
worship—would cross the line drawn by the Establish-
ment Clause. See, e.g., Walz v. Tax Comm’n of City of New
York, 397 U.S. 664, 675 (1970); Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 844 (1995); Mitchell
v. Helms, 530 U.S. 793, 843–844 (2000) (O’Connor, J.,
concurring in judgment). So it is surprising that the Court
mentions the Establishment Clause only to note the par-
ties’ agreement that it “does not prevent Missouri from
including Trinity Lutheran in the Scrap Tire Program.”
Ante, at 6. Constitutional questions are decided by this
Court, not the parties’ concessions. The Establishment
Clause does not allow Missouri to grant the Church’s
funding request because the Church uses the Learning
Center, including its playground, in conjunction with its
religious mission. The Court’s silence on this front signals
either its misunderstanding of the facts of this case or a
startling departure from our precedents.
A
The government may not directly fund religious exer-
cise. See Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16
(1947); Mitchell, 530 U.S., at 840 (O’Connor, J., concur-
ring in judgment) (“[O]ur decisions provide no precedent
for the use of public funds to finance religious activities”
(internal quotation marks omitted)). Put in doctrinal
terms, such funding violates the Establishment Clause
because it impermissibly “advanc[es] . . . religion.”1 Agos-
——————
1 Government aid that has the “purpose” or “effect of advancing or
inhibiting religion” violates the Establishment Clause. Agostini v.
4 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
tini v. Felton, 521 U.S. 203, 222–223 (1997).
Nowhere is this rule more clearly implicated than when
funds flow directly from the public treasury to a house of
worship.2 A house of worship exists to foster and further
religious exercise. There, a group of people, bound by
common religious beliefs, comes together “to shape its own
faith and mission.” Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC, 565 U.S. 171, 188 (2012).
Within its walls, worshippers gather to practice and reaf-
firm their faith. And from its base, the faithful reach out
to those not yet convinced of the group’s beliefs. When a
government funds a house of worship, it underwrites this
religious exercise.
Tilton v. Richardson, 403 U.S. 672 (1971), held as
much. The federal program at issue provided construction
grants to colleges and universities but prohibited grantees
from using the funds to construct facilities “ ‘used for
sectarian instruction or as a place for religious worship’ ”
or “ ‘used primarily in connection with any part of the
program of a school or department of divinity.’ ” Id., at 675
(plurality opinion) (quoting 20 U.S. C. §751(a)(2) (1964
ed., Supp. V)). It allowed the Federal Government to
recover the grant’s value if a grantee violated this prohibi-
tion within twenty years of the grant. See 403 U.S., at
675. The Court unanimously agreed that this time limit
——————
Felton, 521 U.S. 203, 222–223 (1997) (internal quotation marks omit-
ted). Whether government aid has such an effect turns on whether it
“result[s] in governmental indoctrination,” “define[s] its recipients by
reference to religion,” or “create[s] an excessive entanglement” between
the government and religion. Id., at 234; see also id., at 235 (same
considerations speak to whether the aid can “reasonably be viewed as
an endorsement of religion”).
2 Because Missouri decides which Scrap Tire Program applicants
receive state funding, this case does not implicate a line of decisions
about indirect aid programs in which aid reaches religious institutions
“only as a result of the genuine and independent choices of private
individuals.” Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002).
Cite as: 582 U. S. ____ (2017) 5
SOTOMAYOR, J., dissenting
on recovery violated the Establishment Clause. “[T]he
original federal grant w[ould] in part have the effect of
advancing religion,” a plurality explained, if a grantee
“converted [a facility] into a chapel or otherwise used [it]
to promote religious interests” after twenty years. Id., at
683; see also id., at 692 (Douglas, J., concurring in part
and dissenting in part); Lemon v. Kurtzman, 403 U.S.
602, 659–661 (1971) (Brennan, J., concurring); id., at 665,
n. 1 (opinion of White, J.). Accordingly, the Court severed
the twenty-year limit, ensuring that program funds would
be put to secular use and thereby bringing the program in
line with the Establishment Clause. See Tilton, 403 U.S.,
at 683 (plurality opinion).
This case is no different. The Church seeks state funds
to improve the Learning Center’s facilities, which, by the
Church’s own avowed description, are used to assist the
spiritual growth of the children of its members and to
spread the Church’s faith to the children of nonmembers.
The Church’s playground surface—like a Sunday School
room’s walls or the sanctuary’s pews—are integrated with
and integral to its religious mission. The conclusion that
the funding the Church seeks would impermissibly ad-
vance religion is inescapable.
True, this Court has found some direct government
funding of religious institutions to be consistent with the
Establishment Clause. But the funding in those cases
came with assurances that public funds would not be used
for religious activity, despite the religious nature of the
institution. See, e.g., Rosenberger, 515 U.S., at 875–876
(Souter, J., dissenting) (chronicling cases). The Church
has not and cannot provide such assurances here.3 See
——————
3 The Scrap Tire Program requires an applicant to certify, among
other things, that its mission and activities are secular and that it will
put program funds to only a secular use. App. to Pet. for Cert. 127a–
130a. From the record, it is unclear whether the Church provided any
part of this certification. Id., at 127a–130a. In any case, the Church
6 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
Committee for Public Ed. & Religious Liberty v. Nyquist,
413 U.S. 756, 774 (1973) (“No attempt is made to restrict
payments to those expenditures related to the upkeep of
facilities used exclusively for secular purposes, nor do we
think it possible within the context of these religion-
oriented institutions to impose such restrictions”). The
Church has a religious mission, one that it pursues
through the Learning Center. The playground surface
cannot be confined to secular use any more than lumber
used to frame the Church’s walls, glass stained and used
to form its windows, or nails used to build its altar.
B
The Court may simply disagree with this account of the
facts and think that the Church does not put its play-
ground to religious use. If so, its mistake is limited to this
case. But if it agrees that the State’s funding would fur-
ther religious activity and sees no Establishment Clause
problem, then it must be implicitly applying a rule other
than the one agreed to in our precedents.
When the Court last addressed direct funding of reli-
gious institutions, in Mitchell, it adhered to the rule that
the Establishment Clause prohibits the direct funding of
religious activities. At issue was a federal program that
helped state and local agencies lend educational materials
to public and private schools, including religious schools.
See 530 U.S., at 801–803 (plurality opinion). The control-
ling concurrence assured itself that the program would not
lead to the public funding of religious activity. It pointed
out that the program allocated secular aid, that it did so
“on the basis of neutral, secular criteria,” that the aid
would not “supplant non-[program] funds,” that “no . . .
funds ever reach the coffers of religious schools,” that
“evidence of actual diversion is de minimis,” and that the
——————
has not offered any such assurances to this Court.
Cite as: 582 U. S. ____ (2017) 7
SOTOMAYOR, J., dissenting
program had “adequate safeguards” to police violations.
Id., at 867 (O’Connor, J., concurring in judgment). Those
factors, it concluded, were “sufficient to find that the
program . . . [did] not have the impermissible effect of
advancing religion.” Ibid.
A plurality would have instead upheld the program
based only on the secular nature of the aid and the pro-
gram’s “neutrality” as to the religious or secular nature of
the recipient. See id., at 809–814. The controlling concur-
rence rejected that approach. It viewed the plurality’s
test—“secular content aid . . . distributed on the basis of
wholly neutral criteria”—as constitutionally insufficient.
Id., at 839. This test, explained the concurrence, ignored
whether the public funds subsidize religion, the touch-
stone of establishment jurisprudence. See id., at 844
(noting that the plurality’s logic would allow funding of
“religious organizations (including churches)” where “the
participating religious organizations (including churches)
. . . use that aid to support religious indoctrination”).
Today’s opinion suggests the Court has made the leap
the Mitchell plurality could not. For if it agrees that the
funding here will finance religious activities, then only a
rule that considers that fact irrelevant could support a
conclusion of constitutionality. The problems of the “secu-
lar and neutral” approach have been aired before. See,
e.g., id., at 900–902 (Souter, J., dissenting). It has no
basis in the history to which the Court has repeatedly
turned to inform its understanding of the Establishment
Clause. It permits direct subsidies for religious indoctri-
nation, with all the attendant concerns that led to the
Establishment Clause. And it favors certain religious
groups, those with a belief system that allows them to
compete for public dollars and those well-organized and
well-funded enough to do so successfully.4
——————
4 This case highlights the weaknesses of the rule. The Scrap Tire
8 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
Such a break with precedent would mark a radical
mistake. The Establishment Clause protects both religion
and government from the dangers that result when the
two become entwined, “not by providing every religion
with an equal opportunity (say, to secure state funding or
to pray in the public schools), but by drawing fairly clear
lines of separation between church and state—at least
where the heartland of religious belief, such as primary
religious [worship], is at issue.” Zelman v. Simmons-
Harris, 536 U.S. 639, 722–723 (2002) (BREYER, J.,
dissenting).
III
Even assuming the absence of an Establishment Clause
violation and proceeding on the Court’s preferred front—
the Free Exercise Clause—the Court errs. It claims that
the government may not draw lines based on an entity’s
religious “status.” But we have repeatedly said that it
can. When confronted with government action that draws
such a line, we have carefully considered whether the
interests embodied in the Religion Clauses justify that
line. The question here is thus whether those interests
support the line drawn in Missouri’s Article I, §7, separat-
ing the State’s treasury from those of houses of worship.
They unquestionably do.
A
The Establishment Clause prohibits laws “respecting an
establishment of religion” and the Free Exercise Clause
prohibits laws “prohibiting the free exercise thereof.”
——————
Program ranks more highly those applicants who agree to generate
media exposure for Missouri and its program and who receive the
endorsement of local solid waste management entities. That is, it
prefers applicants who agree to advertise that the government has
funded it and who seek out the approval of government agencies. To
ignore this result is to ignore the type of state entanglement with, and
endorsement of, religion the Establishment Clause guards against.
Cite as: 582 U. S. ____ (2017) 9
SOTOMAYOR, J., dissenting
U. S. Const., Amdt. 1. “[I]f expanded to a logical extreme,”
these prohibitions “would tend to clash with the other.”
Walz, 397 U.S., at 668–669. Even in the absence of a
violation of one of the Religion Clauses, the interaction of
government and religion can raise concerns that sound in
both Clauses. For that reason, the government may some-
times act to accommodate those concerns, even when not
required to do so by the Free Exercise Clause, without
violating the Establishment Clause. And the government
may sometimes act to accommodate those concerns, even
when not required to do so by the Establishment Clause,
without violating the Free Exercise Clause. “[T]here is
room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist
without sponsorship and without interference.” Id., at
669. This space between the two Clauses gives govern-
ment some room to recognize the unique status of religious
entities and to single them out on that basis for exclusion
from otherwise generally applicable laws.
Invoking this principle, this Court has held that the
government may sometimes relieve religious entities from
the requirements of government programs. A State need
not, for example, require nonprofit houses of worship to
pay property taxes. It may instead “spar[e] the exercise of
religion from the burden of property taxation levied on
private profit institutions” and spare the government “the
direct confrontations and conflicts that follow in the train
of those legal processes” associated with taxation. See id.,
at 673–674. Nor must a State require nonprofit religious
entities to abstain from making employment decisions on
the basis of religion. It may instead avoid imposing on
these institutions a “[f]ear of potential liability [that]
might affect the way” it “carried out what it understood to
be its religious mission” and on the government the sensi-
tive task of policing compliance. Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v.
10 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
Amos, 483 U.S. 327, 336 (1987); see also id., at 343
(Brennan, J., concurring in judgment). But the govern-
ment may not invoke the space between the Religion
Clauses in a manner that “devolve[s] into an unlawful
fostering of religion.” Cutter v. Wilkinson, 544 U.S. 709,
714 (2005) (internal quotation marks omitted).
Invoking this same principle, this Court has held that
the government may sometimes close off certain govern-
ment aid programs to religious entities. The State need
not, for example, fund the training of a religious group’s
leaders, those “who will preach their beliefs, teach their
faith, and carry out their mission,” Hosanna-Tabor, 565
U.S., at 196. It may instead avoid the historic “antiestab-
lishment interests” raised by the use of “taxpayer funds to
support church leaders.” Locke v. Davey, 540 U.S. 712,
722 (2004).
When reviewing a law that, like this one, singles out
religious entities for exclusion from its reach, we thus
have not myopically focused on the fact that a law singles
out religious entities, but on the reasons that it does so.
B
Missouri has decided that the unique status of houses of
worship requires a special rule when it comes to public
funds. Its Constitution reflects that choice and 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, or in aid of any
priest, preacher, minister or teacher thereof, as such;
and that no preference shall be given to nor any dis-
crimination made against any church, sect or creed of
religion, or any form of religious faith or worship.”
Art. I, §7.
Missouri’s decision, which has deep roots in our Nation’s
history, reflects a reasonable and constitutional judgment.
Cite as: 582 U. S. ____ (2017) 11
SOTOMAYOR, J., dissenting
1
This Court has consistently looked to history for guid-
ance when applying the Constitution’s Religion Clauses.
Those Clauses guard against a return to the past, and so
that past properly informs their meaning. See, e.g., Ever-
son, 330 U.S., at 14–15; Torcaso v. Watkins, 367 U.S. 488,
492 (1961). This case is no different.
This Nation’s early experience with, and eventual rejec-
tion of, established religion—shorthand for “sponsorship,
financial support, and active involvement of the sovereign
in religious activity,” Walz, 397 U.S., at 668—defies easy
summary. No two States’ experiences were the same. In
some a religious establishment never took hold. See T.
Curry, The First Freedoms 19, 72–74, 76–77, 159–160
(1986) (Curry). In others establishment varied in terms of
the sect (or sects) supported, the nature and extent of that
support, and the uniformity of that support across the
State. Where establishment did take hold, it lost its grip
at different times and at different speeds. See T. Cobb,
The Rise of Religious Liberty in America 510–511 (1970
ed.) (Cobb).
Despite this rich diversity of experience, the story rele-
vant here is one of consistency. The use of public funds to
support core religious institutions can safely be described
as a hallmark of the States’ early experiences with reli-
gious establishment. Every state establishment saw laws
passed to raise public funds and direct them toward houses
of worship and ministers. And as the States all dises-
tablished, one by one, they all undid those laws.5
——————
5 This Court did not hold that the Religion Clauses applied, through
the Fourteenth Amendment, to the States until the 1940’s. See Cant-
well v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause); Ever-
son v. Board of Ed. of Ewing, 330 U.S. 1 (1947) (Establishment
Clause). When the States dismantled their religious establishments, as
all had by the 1830’s, they did so on their own accord, in response to the
lessons taught by their experiences with religious establishments.
12 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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SOTOMAYOR, J., dissenting
Those who fought to end the public funding of religion
based their opposition on a powerful set of arguments, all
stemming from the basic premise that the practice harmed
both civil government and religion. The civil government,
they maintained, could claim no authority over religious
belief. For them, support for religion compelled by the
State marked an overstep of authority that would only
lead to more. Equally troubling, it risked divisiveness by
giving religions reason to compete for the State’s benefi-
cence. Faith, they believed, was a personal matter, entirely
between an individual and his god. Religion was best
served when sects reached out on the basis of their tenets
alone, unsullied by outside forces, allowing adherents to
come to their faith voluntarily. Over and over, these
arguments gained acceptance and led to the end of state
laws exacting payment for the support of religion.
Take Virginia. After the Revolution, Virginia debated
and rejected a general religious assessment. The proposed
bill would have allowed taxpayers to direct payments to a
Christian church of their choice to support a minister,
exempted “Quakers and Menonists,” and sent undirected
assessments to the public treasury for “seminaries of
learning.” A Bill Establishing a Provision for Teachers of
the Christian Religion, reprinted in Everson, 330 U.S., at
74 (supplemental appendix to dissent of Rutledge, J.).
In opposing this proposal, James Madison authored his
famous Memorial and Remonstrance, in which he con-
demned the bill as hostile to religious freedom. Memorial
and Remonstrance Against Religious Assessments (1785),
in 5 The Founders’ Constitution 82–84 (P. Kurland & R.
Lerner eds. 1987). Believing it “proper to take alarm,”
despite the bill’s limits, he protested “that the same au-
thority which can force a citizen to contribute three pence
only of his property for the support of any one establish-
ment, may force him to conform to any other establish-
ment.” Id., at 82. Religion had “flourished, not only with-
Cite as: 582 U. S. ____ (2017) 13
SOTOMAYOR, J., dissenting
out the support of human laws, but in spite of every oppo-
sition from them.” Id., at 83. Compelled support for
religion, he argued, would only weaken believers’ “confi-
dence in its innate excellence,” strengthen others’ “suspi-
cion that its friends are too conscious of its fallacies to
trust in its own merits,” and harm the “purity and efficacy”
of the supported religion. Ibid. He ended by deeming
the bill incompatible with Virginia’s guarantee of “ ‘free
exercise of . . . Religion according to the dictates of con-
science.’ ” Id., at 84.
Madison contributed one influential voice to a larger
chorus of petitions opposed to the bill. Others included
“the religious bodies of Baptists, Presbyterians, and Quak-
ers.” T. Buckley, Church and State in Revolutionary
Virginia 1776–1787, p. 148 (1977). Their petitions raised
similar points. See id., at 137–140, 148–149. Like Madi-
son, many viewed the bill as a step toward a dangerous
church-state relationship. See id., at 151. These voices
against the bill won out, and Virginia soon prohibited
religious assessments. See Virginia Act for Establishing
Religious Freedom (Oct. 31, 1785), in 5 The Founders’
Constitution 84–85.
This same debate played out in nearby Maryland, with
the same result. In 1784, an assessment bill was proposed
that would have allowed taxpayers to direct payments to
ministers (of sufficiently large churches) or to the poor.
Non-Christians were exempt. See Curry 155. Controversy
over the bill “eclipse[d] in volume of writing and bitter-
ness of invective every other political dispute since the
debate over the question of independence.” J. Rainbolt,
The Struggle To Define “Religious Liberty” in Maryland,
1776–85, 17 J. Church & State 443, 449 (1975). Critics of
the bill raised the same themes as those in Virginia: that
religion “needs not the power of rules to establish, but only
to protect it”; that financial support of religion leads to-
ward an establishment; and that laws for such support are
14 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
“oppressive.” Curry 156, 157 (internal quotation marks
omitted); see also Copy of Petition [to General Assembly],
Maryland Gazette, Mar. 25, 1785, pp. 1, 2, col.1 (“[W]hy
should such as do not desire or make conscience of it, be
forced by law”). When the legislature next met, most
representatives “had been elected by anti-assessment
voters,” and the bill failed. Curry 157. In 1810, Maryland
revoked the authority to levy religious assessments. See
Md. Const., Amdt. XIII (1776), in 3 Federal and State
Constitutions 1705 (F. Thorpe ed. 1909) (Thorpe).
In New England, which took longer to reach this conclu-
sion, Vermont went first. Its religious assessment laws
were accommodating. A person who was not a member of
his town’s church was, upon securing a certificate to that
effect, exempt. See L. Levy, The Establishment Clause 50
(1994) (Levy). Even so, the laws were viewed by many as
violating Vermont’s constitutional prohibition against
involuntary support of religion and guarantee of freedom
of conscience. See, e.g., Address of Council of Censors to
the People of Vermont 5–8 (1800) (“[R]eligion is a concern
personally and exclusively operative between the individ-
ual and his God”); Address of Council of Censors [Ver-
mont] 3–7 (Dec. 1806) (the laws’ “evils” included “violence
done to the feelings of men” and “their property,” “animos-
ities,” and “the dangerous lengths of which it is a founda-
tion for us to go, in both civil and religious usurpation”).
In 1807, Vermont “repealed all laws concerning taxation
for religion.” Levy 51.
The rest of New England heard the same arguments
and reached the same conclusion. John Leland’s sus-
tained criticism of religious assessments over 20 years
helped end the practice in Connecticut. See, e.g., Esbeck,
Dissent and Disestablishment: The Church-State Settle-
ment in the Early American Republic, 2004 B. Y. U.
L. Rev. 1385, 1498, 1501–1511. The reasons he offered in
urging opposition to the State’s laws will by now be famil-
Cite as: 582 U. S. ____ (2017) 15
SOTOMAYOR, J., dissenting
iar. Religion “is a matter between God and individuals,”
which does not need, and would only be harmed by, gov-
ernment support. J. Leland, The Rights of Conscience
Inalienable (1791), in The Sacred Rights of Conscience
337–339 (D. Dreisbach & M. Hall eds. 2009). “[T]ruth
gains honor; and men more firmly believe it,” when reli-
gion is subjected to the “cool investigation and fair argu-
ment” that freedom of conscience produces. Id., at 340.
Religious assessments violated that freedom, he argued.
See id., at 342 (“If these people bind nobody but them-
selves, who is injured by their religious opinions? But if
they bind an individual besides themselves, the bond is
fraudulent and ought to be declared illegal”). Connecticut
ended religious assessments first by statute in 1817, then
by its State Constitution of 1818. See Cobb 513.
In New Hampshire, a steady campaign against religious
assessments led to a bill that was subjected to “the scru-
tiny of the people.” C. Kinney, Church & State: The Strug-
gle for Separation in New Hampshire, 1630–1900, p. 101
(1955) (Kinney). It was nicknamed “Dr. Whipple’s Act”
after its strongest advocate in the State House. Orford
Union Congregational Soc. v. West Congregational Soc. of
Orford, 55 N. H. 463, 468–469, n. (1875). He defended the
bill as a means “to take religion out of politics, to eliminate
state support, to insure opportunity to worship with true
freedom of conscience, [and] to put all sects and denomina-
tions of Christians upon a level.” Kinney 103. The bill
became law and provided “that no person shall be com-
pelled to join or support, or be classed with, or associated
to any congregation, church or religious society without
his express consent first had and obtained.” Act [of July 1,
1819] Regulating Towns and Choice of Town Officers §3,
in 1 Laws of the State of New Hampshire Enacted Since
June 1, 1815, p. 45 (1824). Massachusetts held on the
longest of all the States, finally ending religious assess-
16 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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SOTOMAYOR, J., dissenting
ments in 1833. See Cobb 515.6
The course of this history shows that those who lived
under the laws and practices that formed religious estab-
lishments made a considered decision that civil govern-
ment should not fund ministers and their houses of wor-
ship. To us, their debates may seem abstract and this
history remote. That is only because we live in a society
that has long benefited from decisions made in response to
these now centuries-old arguments, a society that those
not so fortunate fought hard to build.
2
In Locke, this Court expressed an understanding of, and
respect for, this history. Locke involved a provision of the
State of Washington’s Constitution that, like Missouri’s
nearly identical Article I, §7, barred the use of public
funds for houses of worship or ministers. Consistent with
this denial of funds to ministers, the State’s college schol-
arship program did not allow funds to be used for devo-
tional theology degrees. When asked whether this violated
the would-be minister’s free exercise rights, the Court
invoked the play in the joints principle and answered no.
The Establishment Clause did not require the prohibition
because “the link between government funds and religious
training [was] broken by the independent and private
choice of [scholarship] recipients.” 540 U.S., at 719; see
also supra, n. 2. Nonetheless, the denial did not violate
the Free Exercise Clause because a “historic and substan-
tial state interest” supported the constitutional provision.
——————
6 To this, some might point out that the Scrap Tire Program at issue
here does not impose an assessment specifically for religious entities
but rather directs funds raised through a general taxation scheme to
the Church. That distinction makes no difference. The debates over
religious assessment laws focused not on the means of those laws but
on their ends: the turning over of public funds to religious entities. See,
e.g., Locke v. Davey, 540 U.S. 712, 723 (2004).
Cite as: 582 U. S. ____ (2017) 17
SOTOMAYOR, J., dissenting
540 U.S., at 725. The Court could “think of few areas in
which a State’s antiestablishment interests come more
into play” than the “procuring [of] taxpayer funds to sup-
port church leaders.” Id., at 722.
The same is true of this case, about directing taxpayer
funds to houses of worship, see supra, at 2. Like the use of
public dollars for ministers at issue in Locke, turning over
public funds to houses of worship implicates serious anti-
establishment and free exercise interests. The history just
discussed fully supports this conclusion. As states dises-
tablished, they repealed laws allowing taxation to support
religion because the practice threatened other forms of
government support for, involved some government con-
trol over, and weakened supporters’ control of religion.
Common sense also supports this conclusion. Recall that a
state may not fund religious activities without violating
the Establishment Clause. See Part II–A, supra. A state
can reasonably use status as a “house of worship” as a
stand-in for “religious activities.” Inside a house of wor-
ship, dividing the religious from the secular would require
intrusive line-drawing by government, and monitoring
those lines would entangle government with the house of
worship’s activities. And so while not every activity a
house of worship undertakes will be inseparably linked to
religious activity, “the likelihood that many are makes a
categorical rule a suitable means to avoid chilling the
exercise of religion.” Amos, 483 U.S., at 345 (Brennan, J.,
concurring in judgment). Finally, and of course, such
funding implicates the free exercise rights of taxpayers by
denying them the chance to decide for themselves whether
and how to fund religion. If there is any “ ‘room for play in
the joints’ between” the Religion Clauses, it is here. Locke,
540 U.S., at 718 (quoting Walz, 397 U.S., at 669).
As was true in Locke, a prophylactic rule against the use
of public funds for houses of worship is a permissible
accommodation of these weighty interests. The rule has a
18 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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SOTOMAYOR, J., dissenting
historical pedigree identical to that of the provision in
Locke. Almost all of the States that ratified the Religion
Clauses operated under this rule. See 540 U.S., at 723.
Seven had placed this rule in their State Constitutions.7
Three enforced it by statute or in practice.8 Only one had
not yet embraced the rule.9 Today, thirty-eight States
——————
7 See N. J. Const., Art. XVIII (1776), in 5 Thorpe 2597 (“[N]or shall
any person, within this Colony, ever be obliged to pay tithes, taxes, or
any other rates, for the purpose of building or repairing any other
church or churches, place or places of worship, or for the maintenance
of any minister or ministry, contrary to what he believes to be right, or
has deliberately or voluntarily engaged himself to perform”); N. C.
Const., Art. XXXIV (1776), in id., at 2793 (“[N]either shall any person,
on any pretence whatsoever, . . . be obliged to pay, for the purchase of
any glebe, or the building of any house of worship, or for the mainte-
nance of any minister or ministry, contrary to what he believes right, or
has voluntarily and personally engaged to perform”); Pa. Const., Art.
IX, §3 (1790), in id., at 3100 (“[N]o man can of right be compelled to
attend, erect, or support any place of worship, or to maintain any
ministry, against his consent”); S. C. Const., Art. XXXVIII (1778), in 6
id., at 3257 (“No person shall, by law, be obliged to pay towards the
maintenance and support of a religious worship that he does not freely
join in, or has not voluntarily engaged to support”); Vt. Const., ch. 1,
Art. III (1786), in id., at 3752 (“[N]o man ought, or of right can be
compelled to attend any religious worship, or erect, or support any
place of worship, or maintain any minister, contrary to the dictates of
his conscience”).
Delaware and New York’s Constitutions did not directly address,
but were understood to prohibit, public funding of religion. See Curry,
76, 162; see also Del. Const., Art. I, §1 (1792) (“[N]o man shall or ought
to be compelled to attend any religious worship, to contribute to the
erection or support of any place of worship, or to the maintenance of
any ministry, against his own free will and consent”).
8 See Virginia, Act for Establishing Religious Freedom, in 5 The
Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987); Curry
211–212 (Rhode Island never publicly funded houses of worship);
Esbeck, Dissent and Disestablishment: The Church-State Settlement in
the Early American Republic, 2004 B. Y. U. L. Rev. 1385, 1489–1490
(Maryland never invoked its constitutional authorization of religious
assessments).
9 See N. H. Const., pt. 1, Arts. I, VI (1784), in 4 Thorpe 2453, 2454.
Cite as: 582 U. S. ____ (2017) 19
SOTOMAYOR, J., dissenting
have a counterpart to Missouri’s Article I, §7.10 The provi-
sions, as a general matter, date back to or before these
States’ original Constitutions.11 That so many States have
——————
10 See Ala. Const., Art. I, §3; Ariz. Const., Art. II, §12, Art. IX, §10;
Ark. Const., Art. II, §24; Cal. Const., Art. XVI, §5; Colo. Const., Art. II,
§4, Art. IX, §7; Conn. Const., Art. Seventh; Del. Const., Art. I, §1; Fla.
Const., Art. I, §3; Ga. Const., Art. I, §2, para. VII; Idaho Const., Art. IX,
§5; Ill. Const., Art. I, §3, Art. X, §3; Ind. Const., Art. 1, §§4, 6; Iowa
Const., Art. 1, §3; Ky. Const. §5; Md. Const., Decl. of Rights Art. 36;
Mass. Const. Amdt., Art. XVIII, §2; Mich. Const., Art. I, §4; Minn.
Const., Art. I, §16; Mo. Const., Art. I, §§6, 7, Art. IX, §8; Mont. Const.,
Art. X, §6; Neb. Const., Art. I, §4; N. H. Const., pt. 2, Art. 83; N. J.
Const., Art. I, §3; N. M. Const., Art. II, §11; Ohio Const., Art. I, §7;
Okla. Const., Art. II, §5; Ore. Const., Art. I, §5; Pa. Const., Art. I, §3,
Art. III, §29; R. I. Const., Art. I, §3; S. D. Const., Art. VI, §3; Tenn.
Const., Art. I, §3; Tex. Const., Art. I, §§6, 7; Utah Const., Art. I, §4; Vt.
Const., ch. I, Art. 3; Va. Const., Art. I, §16, Art. IV, §16; Wash. Const.,
Art. I, §11; W. Va. Const., Art. III, §15; Wis. Const., Art. I, §18; Wyo.
Const., Art. I, §19, Art. III, §36.
11 See Ala. Const., Art. I, §3 (1819), in 1 Thorpe 97; Ariz. Const., Art.
II, §12, Art. IX, §10 (1912); Ark. Const., Art. II, §3 (1836), in 1 Thorpe
269; Cal. Const., Art. IX, §8 (1879), in id., at 432; Colo. Const., Art. II,
§4, Art. V, §34 (1876), in id., at 474, 485; Conn. Const., Art. First, §4,
Art. Seventh, §1 (1818), in id., at 537, 544–545; Del. Const., Art. I, §1
(1792); Fla. Const., Decl. of Rights §6 (1885), in 2 Thorpe 733; Ga.
Const., Art. I, §1, para. XIV (1877), in id., at 843; Idaho Const., Art. I,
§4, Art. IX, §5 (1889), in id., at 919, 936–937; Ill. Const., Art. VIII, §3
(1818) and (1870), in id., at 981, 1035; Ind. Const., Art. 1, §3 (1816),
Art. 1, §6 (1851), in id., at 1056, 1074; Iowa Const., Art. 1, §3 (1846), in
id., at 1123; Ky. Const., Art. XIII, §5 (1850), in 3 id., at 1312; Md.
Const., Decl. of Rights Art. 36 (1867), in id., at 1782; Mass. Const.
Amdt., Art. XVIII (1855), in id., at 1918, 1922; Mass. Const. Amdt., Art.
XVIII (1974); Mich. Const., Art. 1, §4 (1835), Art. IV, §40 (1850), in 4
Thorpe 1031, 1050; Minn. Const., Art. I, §16 (1857), in id., at 1092;
Enabling Act for Mo., §4 (1820), Mo. Const., Art. I, §10 (1865), Art. II,
§7 (1875), in id., at 2146–2147, 2192, 2230; Mont. Const., Art. XI, §8
(1889), in id., at 2323; Neb. Const., Art. I, §16 (1866), in id., at 2350; N.
H. Const., pt. 2, Art. 83 (1877); N. J. Const., Art. XVIII (1776), in 5
Thorpe 2597; N. M. Const., Art. II, §11 (1911); Ohio Const., Art. VIII, §3
(1802), in 5 Thorpe 2910; Okla. Const., Art. II, §5 (1907), in H. Snyder,
The Constitution of Oklahoma 21 (1908); Ore. Const., Art. I, §5 (1857),
in 5 Thorpe 2098; Pa. Const., Art. IX, §3 (1790), Art. III, §18 (1873), in
20 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
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SOTOMAYOR, J., dissenting
for so long drawn a line that prohibits public funding for
houses of worship, based on principles rooted in this Na-
tion’s understanding of how best to foster religious liberty,
supports the conclusion that public funding of houses of
worship “is of a different ilk.” Locke, 540 U.S., at 723.
And as in Locke, Missouri’s Article I, §7, is closely tied to
the state interests it protects. See Locke, 540 U.S., at 724
(describing the program at issue as “go[ing] a long way
toward including religion in its benefits”). A straightfor-
ward reading of Article I, §7, prohibits funding only for
“any church, sect, or denomination of religion, or in aid of
any priest, preacher, minister or teacher thereof, as such.”
The Missouri courts have not read the State’s Constitution
to reach more broadly, to prohibit funding for other reli-
giously affiliated institutions, or more broadly still, to
prohibit the funding of religious believers. See, e.g., Saint
Louis Univ. v. Masonic Temple Assn. of St. Louis, 220
S.W.3d 721, 726 (Mo. 2007) (“The university is not a
religious institution simply because it is affiliated with the
Jesuits or the Roman Catholic Church”). The Scrap Tire
Program at issue here proves the point. Missouri will
fund a religious organization not “owned or controlled by a
church,” if its “mission and activities are secular (separate
from religion, not spiritual in) nature” and the funds “will
be used for secular (separate from religion; not spiritual)
purposes rather than for sectarian (denominational, de-
voted to a sect) purposes.” App. to Brief for Petitioner 3a;
——————
id., at 3100, 3120; R. I. Const., Art. I, §3 (1842), in 6 id., at 3222–3223;
S. D. Const., Art. VI, §3 (1889), in id., at 3370; Tenn. Const., Art. XI, §3
(1796), in id., at 3422; Tex. Const., Art. I, §4 (1845), Art. I, §7 (1876), in
id., at 3547–3548, 3622; Utah Const., Art. I, §4 (1895), in id., at 3702;
Vt. Const., ch. I, Art. III (1777), in id., at 3740; Va. Const., Art. III, §11
(1830), Art. IV, §67 (1902), in 7 id., at 3824, 3917; Wash. Const., Art. I,
§11 (1889), in id., at 3874; W. Va. Const., Art. II, §9 (1861–1863), in id.,
at 4015; Wis. Const., Art. I, §18 (1848), in id., at 4078–4079; Wyo.
Const., Art. I, §19, Art. III, §36 (1889), in id., at 4119, 4124.
Cite as: 582 U. S. ____ (2017) 21
SOTOMAYOR, J., dissenting
see also Tr. of Oral Arg. 33–35. Article I, §7, thus stops
Missouri only from funding specific entities, ones that set
and enforce religious doctrine for their adherents. These
are the entities that most acutely raise the establishment
and free exercise concerns that arise when public funds
flow to religion.
Missouri has recognized the simple truth that, even
absent an Establishment Clause violation, the transfer of
public funds to houses of worship raises concerns that sit
exactly between the Religion Clauses. To avoid those
concerns, and only those concerns, it has prohibited such
funding. In doing so, it made the same choice made by the
earliest States centuries ago and many other States in the
years since. The Constitution permits this choice.
3
In the Court’s view, none of this matters. It focuses on
one aspect of Missouri’s Article I, §7, to the exclusion of all
else: that it denies funding to a house of worship, here the
Church, “simply because of what it [i]s—a church.” Ante,
at 12. The Court describes this as a constitutionally im-
permissible line based on religious “status” that requires
strict scrutiny. Its rule is out of step with our precedents
in this area, and wrong on its own terms.
The Constitution creates specific rules that control how
the government may interact with religious entities. And
so of course a government may act based on a religious
entity’s “status” as such. It is that very status that impli-
cates the interests protected by the Religion Clauses.
Sometimes a religious entity’s unique status requires the
government to act. See Hosanna-Tabor, 565 U.S., at 188–
190. Other times, it merely permits the government to
act. See Part III–A, supra. In all cases, the dispositive
issue is not whether religious “status” matters—it does, or
the Religion Clauses would not be at issue—but whether
the government must, or may, act on that basis.
22 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
Start where the Court stays silent. Its opinion does not
acknowledge that our precedents have expressly approved
of a government’s choice to draw lines based on an entity’s
religious status. See Amos, 483 U.S., at 339; Walz, 397
U.S., at 680; Locke, 540 U.S., at 721. Those cases did not
deploy strict scrutiny to create a presumption of unconsti-
tutionality, as the Court does today. Instead, they asked
whether the government had offered a strong enough
reason to justify drawing a line based on that status. See
Amos, 483 U.S., at 339 (“[W]e see no justification for
applying strict scrutiny”); Walz, 397 U.S., at 679 (reject-
ing criticisms of a case-by-case approach as giving “too
little weight to the fact that it is an essential part of adju-
dication to draw distinctions, including fine ones, in the
process of interpreting the Constitution”); Locke, 540 U.S.,
at 725 (balancing the State’s interests against the aspiring
minister’s).
The Court takes two steps to avoid these precedents.
First, it recasts Locke as a case about a restriction that
prohibited the would-be minister from “us[ing] the funds
to prepare for the ministry.” Ante, at 12. A faithful read-
ing of Locke gives it a broader reach. Locke stands for the
reasonable proposition that the government may, but need
not, choose not to fund certain religious entities (there,
ministers) where doing so raises “historic and substantial”
establishment and free exercise concerns. 540 U.S., at
725. Second, it suggests that this case is different because
it involves “discrimination” in the form of the denial of
access to a possible benefit. Ante, at 11. But in this area
of law, a decision to treat entities differently based on
distinctions that the Religion Clauses make relevant does
not amount to discrimination.12 To understand why, keep
——————
12 This explains, perhaps, the Court’s reference to an Equal Protection
Clause precedent, rather than a Free Exercise Clause precedent, for
this point. See ante, at 11 (citing Northeastern Fla. Chapter, Associated
Cite as: 582 U. S. ____ (2017) 23
SOTOMAYOR, J., dissenting
in mind that “the Court has unambiguously concluded
that the individual freedom of conscience protected by the
First Amendment embraces the right to select any reli-
gious faith or none at all.” Wallace v. Jaffree, 472 U.S. 38,
52–53 (1985). If the denial of a benefit others may receive
is discrimination that violates the Free Exercise Clause,
then the accommodations of religious entities we have
approved would violate the free exercise rights of nonreli-
gious entities. We have, with good reason, rejected that
idea, see, e.g., Amos, 483 U.S., at 338–339, and instead
focused on whether the government has provided a good
enough reason, based in the values the Religion Clauses
protect, for its decision.13
The Court offers no real reason for rejecting the balanc-
ing approach in our precedents in favor of strict scrutiny,
beyond its references to discrimination. The Court’s desire
to avoid what it views as discrimination is understand-
able. But in this context, the description is particularly
——————
Gen. Contractors of America v. Jacksonville, 508 U.S. 656 (1993)).
13 No surprise then that, despite the Court’s protests to the contrary,
no case has applied its rigid rule. McDaniel v. Paty, 435 U.S. 618
(1978), on which the Court relies most heavily, mentioned “status” only
to distinguish laws that deprived a person “of a civil right solely be-
cause of their religious beliefs.” Id., at 626–627 (plurality opinion). In
Torcaso v. Watkins, 367 U.S. 488 (1961), the Court invalidated a law
that barred persons who refused to state their belief in God from public
office without “evaluat[ing] the interests assertedly justifying it.”
McDaniel, 435 U.S., at 626 (plurality opinion). That approach did not
control in McDaniel, which involved a state constitutional provision
that barred ministers from serving as legislators, because “ministerial
status” was defined “in terms of conduct and activity,” not “belief.” Id.,
at 627. The Court thus asked whether the “anti-establishment inter-
ests” the State offered were strong enough to justify the denial of a
constitutional right—to serve in public office—and concluded that they
were not. Id., at 627–629. Other references to “status” in our cases
simply recount McDaniel. See, e.g., Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U.S. 520, 533 (1993); Employment Div., Dept. of Hu-
man Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990).
24 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
inappropriate. A State’s decision not to fund houses of
worship does not disfavor religion; rather, it represents a
valid choice to remain secular in the face of serious estab-
lishment and free exercise concerns. That does not make
the State “atheistic or antireligious.” County of Allegheny
v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573, 610 (1989). It means only that the
State has “establishe[d] neither atheism nor religion as its
official creed.” Ibid. The Court’s conclusion “that the only
alternative to governmental support of religion is govern-
mental hostility to it represents a giant step backward in
our Religion Clause jurisprudence.” Id., at 652, n. 11
(Stevens, J., concurring in part and dissenting in part).
At bottom, the Court creates the following rule today:
The government may draw lines on the basis of religious
status to grant a benefit to religious persons or entities
but it may not draw lines on that basis when doing so
would further the interests the Religion Clauses protect in
other ways. Nothing supports this lopsided outcome. Not
the Religion Clauses, as they protect establishment and
free exercise interests in the same constitutional breath,
neither privileged over the other. Not precedent, since we
have repeatedly explained that the Clauses protect not
religion but “the individual’s freedom of conscience,” Jaf-
free, 472 U.S., at 50—that which allows him to choose
religion, reject it, or remain undecided. And not reason,
because as this case shows, the same interests served by
lifting government-imposed burdens on certain religious
entities may sometimes be equally served by denying
government-provided benefits to certain religious entities.
Cf. Walz, 397 U.S., at 674 (entanglement); Amos, 483
U.S., at 336 (influence on religious activities).
JUSTICE BREYER’s concurrence offers a narrower rule
that would limit the effects of today’s decision, but that
rule does not resolve this case. JUSTICE BREYER, like the
Court, thinks that “denying a generally available benefit
Cite as: 582 U. S. ____ (2017) 25
SOTOMAYOR, J., dissenting
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,” ante, at 6 (majority
opinion) (internal quotation marks omitted). See ante, at
1–2 (BREYER, J., concurring in judgment). Few would
disagree with a literal interpretation of this statement. To
fence out religious persons or entities from a truly gener-
ally available public benefit—one provided to all, no ques-
tions asked, such as police or fire protections—would
violate the Free Exercise Clause. Accord, Rosenberger,
515 U.S., at 879, n. 5 (Souter, J., dissenting). This ex-
plains why Missouri does not apply its constitutional
provision in that manner. See Tr. of Oral Arg. 35–36. Nor
has it done so here. The Scrap Tire Program offers not a
generally available benefit but a selective benefit for a few
recipients each year. In this context, the comparison to
truly generally available benefits is inapt. Cf. Everson,
330 U.S., at 61, n. 56 (Rutledge, J., dissenting) (The Reli-
gion Clauses “forbi[d] support, not protection from inter-
ference or destruction”).
On top of all of this, the Court’s application of its new
rule here is mistaken. In concluding that Missouri’s Arti-
cle I, §7, cannot withstand strict scrutiny, the Court de-
scribes Missouri’s interest as a mere “policy preference for
skating as far as possible from religious establishment
concerns.” Ante, at 14. The constitutional provisions of
thirty-nine States—all but invalidated today—the weighty
interests they protect, and the history they draw on de-
serve more than this judicial brush aside.14
——————
14 In the end, the soundness of today’s decision may matter less than
what it might enable tomorrow. The principle it establishes can be
manipulated to call for a similar fate for lines drawn on the basis of
religious use. See ante, at 1–3 (GORSUCH, J., concurring in part); see
also ante, at 1–2 (THOMAS, J., concurring in part) (going further and
suggesting that lines drawn on the basis of religious status amount to
per se unconstitutional discrimination on the basis of religious belief ).
26 TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
COMER
SOTOMAYOR, J., dissenting
Today’s decision discounts centuries of history and
jeopardizes the government’s ability to remain secular.
Just three years ago, this Court claimed to understand
that, in this area of law, to “sweep away what has so long
been settled would create new controversy and begin anew
the very divisions along religious lines that the Estab-
lishment Clause seeks to prevent.” Town of Greece v.
Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8). It
makes clear today that this principle applies only when
preference suits.
IV
The Religion Clauses of the First Amendment contain a
promise from our government and a backstop that disables
our government from breaking it. The Free Exercise
Clause extends the promise. We each retain our inalien-
able right to “the free exercise” of religion, to choose for
ourselves whether to believe and how to worship. And the
Establishment Clause erects the backstop. Government
cannot, through the enactment of a “law respecting an
establishment of religion,” start us down the path to the
past, when this right was routinely abridged.
The Court today dismantles a core protection for reli-
gious freedom provided in these Clauses. It holds not just
that a government may support houses of worship with
taxpayer funds, but that—at least in this case and per-
haps in others, see ante at 14, n. 3—it must do so when-
ever it decides to create a funding program. History shows
that the Religion Clauses separate the public treasury
——————
It is enough for today to explain why the Court’s decision is wrong. The
error of the concurrences’ hoped-for decisions can be left for tomorrow.
See, for now, School Dist. of Abington Township v. Schempp, 374 U.S.
203, 226 (1963) (“While the Free Exercise Clause clearly prohibits the
use of state action to deny the rights of free exercise to anyone, it has
never meant that a majority could use the machinery of the State to
practice its beliefs”).
Cite as: 582 U. S. ____ (2017) 27
SOTOMAYOR, J., dissenting
from religious coffers as one measure to secure the kind of
freedom of conscience that benefits both religion and
government. If this separation means anything, it means
that the government cannot, or at the very least need not,
tax its citizens and turn that money over to houses of
worship. The Court today blinds itself to the outcome this
history requires and leads us instead to a place where
separation of church and state is a constitutional slogan,
not a constitutional commitment. I dissent.