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Acting pursuant to its state constitution, Missouri excluded houses of worship from a program that provides government support for resurfacing playgrounds. In Trinity Lutheran Church v. Comer (“TLC”), the Supreme Court ruled (7-2) that this exclusion violated the Free Exercise Clause. To those with a sense of Religion Clause history, the Supreme Court's opinion arrived as a shock.

As this essay explains, the agreement among the Justices in the majority masks deep division about basic Religion Clause principles. The essay analyzes the status of those principles, and the ways in which TLC disregards or abandons them.

Most starkly, the Court ignored the longstanding and widespread pattern among state constitutions to prohibit transfers of money to houses of worship. The Court similarly ignored relevant Establishment Clause principles. In place of those concerns, the Court’s opinion relies on a supposed Free Exercise principle of non-discrimination. In the past, however, the Free Exercise Clause has been a bar only to discrimination among faiths, never to distinctive treatment of houses of worship.

The reach of TLC may be circumscribed by footnote 3, in which four of the Justices reserve the question of whether the principle of nondiscrimination extends to religious uses of funds. In their concurring opinions, however, Justices Thomas and Gorsuch show no such restraint. In their view, any exclusion of religious entities in state funding programs would violate the Free Exercise Clause. As we explain, this approach turns the Religion Clauses on their heads, and represents a deep betrayal by Justice Gorsuch of his commitments to text and history.

Where will TLC lead? The essay’s final section analyzes the cases that the Supreme Court remanded, in light of TLC, to the state courts in New Mexico and Colorado. These cases all involve state constitutional restrictions on public support of private schools. We believe that the state courts will uphold their constitutional restrictions on remand, and the U.S. Supreme Court will leave the results in those cases undisturbed. Nevertheless, TLC invites challenges to other state constitutional limits on direct public support for religious experience, perhaps in charter schools or faith-based social services. Ultimately, the courts must decide whether TLC represents a radical shift from the longstanding paradigm of no direct state funding for religious experience to one that requires equal funding of such experience.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-59; GWU Legal Studies Research Paper No. 2017-59

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