Should Religious Organizations Be Able to Receive Neutral Government Funding?

January 27, 2016

On Friday, January 15, 2016, the Supreme Court of the United States granted certiorari in Trinity Lutheran Church v. Pauley. The case provides the Court a vehicle with which to explore the intersection of First Amendment religious freedoms and neutral government funding programs.

Trinity is a Missouri church that, like many Wisconsin churches, operates a preschool and daycare on its premises. The preschool and daycare maintain open enrollment policies and include religious instruction as part of their programs. Trinity’s facility also includes a playground, the surface of which is comprised of grass and gravel.

The Missouri Department of Natural Resources offers Playground Scrap Tire Surface Material Grants, which provide state funds to qualifying organizations for the purchase of recycled tire material to resurface playgrounds. Seeking to replace its playground surface with the safer recycled tire alternative, Trinity applied for the grant. Citing both the Federal and Missouri Constitutions, the Missouri Department of Natural Resources denied Trinity the grant solely because Trinity is a religious institution.

Trinity sued in Federal Court citing violations of the Free Exercise, Establishment, and Equal Protection Clauses. The District Court dismissed Trinity’s suit holding no legal basis existed to support Trinity’s argument that excluding religious institutions from the program violated the Free Exercise Clause and that the State’s decision to exclude Trinity from the program was motivated by antiestablishment concerns that required the Equal Protection claim to be dismissed.

The Eighth Circuit affirmed. The court relied on the United States Supreme Court Case Locke v. Davey. In Locke, the state of Washington created a scholarship program that provided money to certain talented state students. However, the scholarship money could not be used to obtain a degree in theology if the theology program was designed to profligate a particular belief system. Washington’s Constitution prohibits the use of state funds for religious instruction. A recipient of the scholarship money was forced to forfeit the scholarship because he was pursuing a major in pastoral ministries at a private Christian college. In a 7 to 2 decision, the Supreme Court held that a state does not violate the Free Exercise Clause when it funds secular college majors but does not fund devotional theology majors. The Court also held that the Washington Constitution’s provision prohibiting state money from being used to fund religious instruction did not violate the Free Exercise Clause because it did not demonstrate animus toward religion, and states have a historic and substantial interest in excluding religious activity from public funding.

The Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley to decide whether a state administering an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when it denies a church participation in the program solely because it is a religious organization. This case will likely affect how governments and religious institutions interact. Those working with state and local governments, and those working with religious institutions, should be prepared to adjust to such changes when they are handed down later this year.