By General Counsel K. Hollyn Hollman
In Trinity Lutheran Church of Columbia, Inc. v. Pauley, the U.S. Supreme Court will consider the case of a church that sued the state of Missouri because it was denied a government grant to pay for capital improvements to its property. While it appears unlikely to attract the widespread attention of other recent church-state cases, Trinity Lutheran raises important issues of federalism and protection for religious liberty. In fact, the questions the Court will consider in the case go to the heart of the relationship between the institutions of church and state in our religious liberty tradition.
The case arises out of an unusual context. Missouri created a discretionary grant program to reduce landfill waste and encourage the use of recycled tire scraps for playground resurfacing. The Alliance Defending Freedom, a legal organization that represents Trinity Lutheran, argues that the church has a federal free exercise and equal protection right to participate in the state’s grant program. But doesn’t government support for church property fly in the face of America’s longstanding constitutional tradition? Surely, the separation of church and state that has long protected religious freedom supports a state policy that keeps the state from funding church property improvements.
The First Amendment’s “no establishment” clause prohibits government sponsorship of religion. Unsurprisingly, the Court has never decided a case involving direct financial aid to churches, much less found that the Free Exercise Clause requires churches to be included in a government funding program. In previous cases involving Establishment Clause challenges to aid programs for other religious institutions, such as religiously affiliated schools or social services charities, the Court has warned of the special dangers that are inherent if a program involved direct aid to churches. The state of Missouri is well aware of those dangers, and its scrap tire program was designed consistent with the state’s policy of separation between the institutions of religion and government.
Missouri, like 39 other states, has a state constitutional prohibition against funding churches with tax dollars. In fact, Missouri has three such “no-aid” provisions. The first one was included in its very first constitution written in 1820 and has remained virtually unchanged in each successive constitution (Missouri is now on its fourth state constitution). The district and appellate courts both held that Missouri had correctly interpreted its constitution as preventing it from paying for a church’s capital improvement project.
These provisions reflect a long-standing commitment to religious freedom that makes sense for practical and historical reasons. Churches (and other houses of worship) are the quintessential religious entities organized for religious expression. They are unique institutions in American society that receive special treatment in the law to maintain a separation from government that benefits religion. That unique legal status is reflected in exemptions and accommodations, and in safeguards to prevent government interference, favoritism and control. Maintaining special legal status depends on understanding and protecting the distinct role churches play and the historical context for that role.
The religious liberty we enjoy and the way it is protected in our federal and state constitutions are direct results of the problems with religious establishments that were well known in the founding era. State-established churches were our European heritage and the experience in most of our Colonies. One key element of establishment was state financial support for the church and its ministers. Our Baptist forebears were among the staunchest advocates to sever this financial cord between church and state. Disestablishment, as reflected in law, was a major advancement in protecting the religious liberty of its citizenry. Concerns over financial entanglement of government and churches pre-date our Constitution and resulted in a variety of expressions of “anti-establishment” language that exist in the federal and most state constitutions, like Missouri’s.
Unlike cases about prayer at government meetings or religious objections to contraceptive coverage in employee health plans, this case may not immediately provoke strong opinions. The grant program at issue is small and may appear to have little religious significance if extended to churches, but Missouri’s policy is sound. As we argue in our brief, “[The] Court has recognized the importance of avoiding government funding of religion, even in cases where aid to religion has been upheld. In our constitutional tradition, restrictions on aid to religious institutions are never inherently suspect. On the contrary, in both federal and state law, such restrictions are widespread, long-standing, and effective means to protect crucial constitutional boundaries.”
For more on the case, including a video and a copy of the BJC’s brief, visit BJConline.org/TrinityLutheran.
From the July/August 2016 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.
