Trinity Lutheran v. Comer: Does The U.S. Supreme Court Now See Separation of Church and State as a Kind of Religious Discrimination?

by | Jul 11, 2017

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About John E. Taylor

John E. Taylor is the Jackson Kelly Professor at the WVU College of Law. Most of his scholarship deals with First Amendment Issues in the public schools. He holds a Ph.D. in Religious Studies from Stanford University and a J.D. with highest honors from the University of North Carolina at Chapel Hill.


John E. Taylor, “Trinity Lutheran v. Comer: Does The U.S. Supreme Court Now See Separation of Church and State as a Kind of Religious Discrimination?” (OxHRH Blog, 11 July 2017) <> [Date of Access]

The U.S. Supreme Court’s decision in Trinity Lutheran v. Comer seems modest on its facts, but it moves the Court one step closer to a complete reversal of the “separation of church and state,” at least in matters of government funding of religious institutions.  Thirty-five years ago, governments were usually required to exclude religious institutions from government grant programs.  After Trinity Lutheran, we are fast moving toward a world in which governments are required to include religions institutions within any general grant program – even when state constitutions would require a different result.  More strikingly still, the Court now appears willing to treat separationist exclusions of religion from general funding programs as a kind of invidious religious discrimination.

The Trinity Lutheran Decision

Missouri established a program offering reimbursement grants to qualifying nonprofit organizations that installed playground surfaces made from recycled tires.  Trinity Lutheran Church ran a preschool and daycare center on its property and applied for a grant, but Missouri’s Department of Natural Resources rejected the church’s application because Article I, Section 7 of the Missouri Constitution 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.” The church challenged its exclusion as a violation of the Free Exercise Clause, and the U.S. Supreme Court agreed in an opinion that gives religious liberty interests priority over state interests in preserving church-state separation.

Locke v. Davey: May states insist on greater separation of church and state than the federal Constitution requires?

The Supreme Court’s current understanding of the Establishment Clause provides a good deal of room for including religious institutions in general government grant programs.  However, nearly every state has an analogous provision in its state constitution, and many of these provisions (like Missouri’s) are more stringently worded than the federal Establishment Clause.  What happens if state constitutional law is more separationist than the Supreme Court’s current reading of the Establishment Clause?

That is basically the question in Trinity Lutheran, but the Supreme Court faced it once before thirteen years ago in Locke v. Davey. There, Joshua Davey lost a college scholarship when he declared a major in “pastoral ministries” because Washington understood its state constitution to ban the use of public money to support the pursuit of any degree in “devotional theology.”  Davey argued that expressly excluding pastoral training from the scholarship program violated the Free Exercise Clause.

The Supreme Court disagreed by a vote of 7 to 2.  Writing for the Court, Chief Justice Rehnquist explained that there was “play in the joints” between the Free Exercise and Establishment Clauses.  Just because the state could have funded Davey’s training for the ministry without violating the Establishment Clause didn’t mean that its failure to do so violated the Free Exercise Clause.  There are many ways to read Locke, but one key theme is its emphasis on federalism and the deep historical roots of separationism, particularly in the context of tax money being used to support the training of clergy.

Separationism Equals Discrimination

Lower courts have not had frequent occasion to interpret Locke, but for the most part they have read it to mean that states have a good deal of leeway to insist on a greater degree of church-state separation than the Establishment Clause requires.  Relying on Locke, the Eighth Circuit had ruled against Trinity Lutheran.

The Supreme Court reversed.  Significantly, Justice Roberts’s opinion for the Court ruled that Locke’s framework was inapplicable since Joshua Davey was denied a scholarship because of what he “proposed to do” (i.e. study devotional theology), whereas Trinity Lutheran was denied “simply because of what it was – a church.”  As Justice Gorsuch pointed out in his concurring opinion, this effort to distinguish between religious status and religious choices is unconvincing.

Having distinguished Locke on this basis, Justice Roberts then applied strict scrutiny to Missouri’s decision to deny the church’s grant application.  In other words, the Court analyzed Missouri’s separationist exclusion of Trinity Lutheran – based on its own constitution – under the same standard that would be applied to, e.g.,  an express ban on Muslims entering the United States.  Whereas Locke could be read to say that separationism and religious discrimination were horses of a different color, the Court’s opinion suggests that in most contexts, the Court will view separationism – a view it once wholeheartedly embraced – as a kind of religious discrimination.


Justice Roberts’s opinion suggests that Locke will be read narrowly in the future, thus we seem headed toward a world in which states will have little or no leeway to adopt a more separationist approach than the current Supreme Court’s.  Indeed, the day after announcing its decision in Trinity Lutheran, the Court vacated for reconsideration several state court decisions excluding religious schools from grant programs because of separationist language in state constitutions.

Cases like Locke and Trinity Lutheran can be seen as pitting the rights of religious claimants to participate in government benefit programs against the rights of taxpayers not to support religions with which they disagree.  Trinity Lutheran leaves little doubt about which claims the Supreme Court will favor in the future.

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