Skip to content

Religious Nonprofits Score Big Constitutional Win

08.11.17 | Linda J. Rosenthal, JD

It all started several years ago on a playground at a church preschool in Columbia, Missouri. The saga concluded on June 26, 2017, when seven of the nine justices of the United States Supreme Court ruled in favor of the church.
In Trinity Lutheran Church of Columbia v. Comer, Chief Justice John Roberts explains that the Free Exercise Clause of the First Amendment “…protects religious observers against unequal treatment.” It is a significant First Amendment decision, now stating the proposition that a state “may not deny a church an otherwise available public benefit or payment because of its religious status.”

Setting the Stage for a Constitutional Showdown

In 2012, the State of Missouri created a fund to help eligible nonprofits repair their old playground coverings with a pour-in-place rubber surface made from recycled tires. The new material is squishy, sustainable, and much safer for kids.
Of course, there was only so much money available. Applications for reimbursement grants were made to the Missouri Department of Natural Resources which has been in charge of administering this Scrap Tire Program.
Columbia’s Trinity Lutheran Church has a preschool and daycare center called the Child Learning Center. “Originally established as a nonprofit organization, 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.

Trinity’s Child Learning Center applied under the Scrap Tire Program. Although it “ranked fifth out of the 44 applicants,” its application was rejected. Some 14 grants were made that year.
The Department of Natural Resources “had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity.” This was based on Article I, Section 7, of the Missouri Constitution which prohibits providing “financial assistance directly to a church.” In about 3 dozen other states, similar constitutional provisions prohibit spending any public money on “any church, sect, or denomination of religion.”
Trinity Lutheran Church fought back by filing suit in federal district court on constitutional grounds.

Constitutional Law: Complex, Controversial

Constitutional law is a tough nut to crack even for lawyers, and the First Amendment is just about the toughest nut of all.
The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (emph. added)
The first part, commonly called the Establishment Clause, “forbids the government from establishing an official religion,” or unduly favoring one faith over another.
The second part, known as the Free Exercise Clause, protects the individual’s right to freely exercise his or her chosen religion.
These two clauses within the First Amendment can and should be complementary expressions of our nation’s commitment to separation of church and state as well as to the promise of protection of an individual’s right to practice a chosen religion without undue burden or government interference. More often than not, though, First Amendment lawsuits are marked by a tug-of-war between these two goals.
Over decades, the pendulum tends to swing back and forth; during some periods, there is more activity in connection with the Establishment Clause; in others – including right now – there is more focus on claims of violation of the Free Exercise Clause. In this case, the Free Exercise Clause argument won out in the Supreme Court, although both of the lower courts ruled against Trinity Lutheran Church.
At the trial level, the federal judge dismissed Trinity’s lawsuit on grounds that the Free Exercise Clause “prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion.”
When the case moved on to the appellate court, the thorny issue of the Missouri Constitution was thrown into the already volatile mix. Trinity Church once again lost. A divided panel of judges explained that, while the –

State could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the Federal Constitution, [that] did not mean that the Free Exercise Clause compelled the State to disregard the broader antiestablishment principle reflected in its own Constitution.

To complicate matters more, a sudden change in the Missouri governorship in 2017 from a Democrat to a Republican had a significant effect as well.

At oral argument, the lawyer defending the law seemed to face an uphill battle in defending the exclusion of church groups from a program with only a secular goal — making playgrounds safer — and for which Trinity’s Learning Center would have been approved had it been a secular preschool.
Some states with the same restriction as Missouri already allow churches to participate in programs that are generally applicable to the public and are for secular benefits such as health and safety.
Adding a twist to the case, Missouri now does as well. The state’s new Republican governor, Eric Greitens, announced just before the April oral argument that he was reversing the policy that denied Trinity’s application in 2012 and that churches are now eligible to participate.
The state’s new attorney general agrees, and a private attorney was appointed by the state to defend its old policy.


Described as “one of the most important rulings on religious rights in decades,” the full text of Trinity Lutheran Church v. Comer is here: all 53 pages including the dissent by Justices Sotomayor and Ginsburg.
For provocative commentary criticizing the majority’s opinion, see, for instance:

  • Prof. Noah Feldman, Harvard Law: Supreme Court Weakens Wall Between Church and State [“In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes. Somewhere, James Madison is shaking his head in disbelief.”]
  • Perry Grossman, Esq. & Mark Joseph Stern, Goodbye, Establishment Clause [“The Supreme Court’s ruling … threatens to obliterate the divide between church and state.”]

Recent Insights

How can we help you today?