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First Amendment: Religion

Churches, Playgrounds, Government Dollars — and Schools?

The full text of this Comment may be found by clicking the PDF link to the left.

If a state awards grants, on religiously neutral criteria, to create safer playground surfaces, it cannot exclude an otherwise eligible playground simply because it is owned by a church. Such discrimination against religion violates the Free Exercise Clause, and awarding the grant would not violate the Establishment Clause. This holding, in Trinity Lutheran Church v. Comer,1×1. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). is an incremental step in a large and continuing evolution. It may lead to bigger steps, but Trinity Lutheran does not take those steps.

To the dissenters, Trinity Lutheran crossed an important line. Was this case about playground surfaces and the safety of children? Or was it about direct government aid to a church? It was about both, and the question was which characterization should control. Trinity Lutheran further erodes special rules against direct aid to the church itself or to pervasively sectarian organizations more generally. It erodes the line between direct and indirect aid. And it does all this in the course of deciding not what the state may fund, but what it must fund if it funds secular organizations engaged in the same activity.

The focus on something so secular as playgrounds and the safety of children explains why the vote was 7–2. The dissenters claimed that the playground was part of the church’s religious mission, but more fundamentally, they thought that the state may and must refuse to fund churches, no matter how secular the specific use of the money. They thought the majority overturned a principle that went back to the Founding.2×2. Id. at 2027 (Sotomayor, J., dissenting).

Trinity Lutheran resolves some of the deep ambiguities in the previous leading case, Locke v. Davey.3×3. 540 U.S. 712 (2004). Davey held that Washington could exclude theology majors from a generally available state scholarship program. It could be read as a case specifically about funding the training of clergy or as a case about all government funding in the private sector; Trinity Lutheran moves Davey toward the narrower reading. Trinity Lutheran silently rejects the implausible assertion that Davey requires bad motive for any successful free exercise claim, and it rejects Davey’s implication that discriminatory refusals to fund are not cognizable burdens on the exercise of religion.

The bigger issue is whether Trinity Lutheran will apply to school choice programs. Can a state fund secular private schools without funding religious private schools? A plurality carefully reserved that issue,4×4. Trinity Lutheran, 137 S. Ct. at 2024 n.3 (plurality opinion). and the next day, the Court remanded two cases presenting variations on that issue.5×5. See infra pp. 160–61. Five Justices signaled their view of that question in separate opinions,6×6. See infra p. 136. and we can make educated guesses about some of the others. But nothing in Trinity Lutheran controls the answer.


* Robert E. Scott Distinguished Professor of Law, Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low, and Professor of Religious Studies, University of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, University of Texas at Austin. I am grateful to Richard Garnett and Christopher Lund for instant comments on an earlier draft.