Trinity Lutheran Church v. Comer


A Missouri church sued to be included in a state government program that gave grants for playground improvements. Missouri had rejected the church’s application because the state’s constitution prohibits taxpayer funds from being used “in aid of any church, sect or denomination of religion.”

BJC, joined by the United Church of Christ, filed a friend-of-the-court brief defending the state’s policy against government funding of churches. The brief makes it clear that the First Amendment does not require state governments to fund houses of worship.

Preventing taxpayer money from funding religion is a key protection for religious liberty. The extent to which a ministry is funded through offerings or other church-related income sources is a matter of church autonomy, and judicial attempts to regulate or distinguish a church’s religious activities from its secular activities compromises that autonomy.

On June 26, 2017, the U.S. Supreme Court ruled in favor of the church by a 7-2 vote for a narrowly crafted decision. For the majority of the justices, the case did not involve government funding of religion; it was simply about a public benefit to promote safety through playground improvements. Limiting what would otherwise be a more disturbing departure from our religious liberty foundations and the Court’s precedents, footnote 3 in the decision says: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

“By treating a state ban on aid to churches as a mark of discrimination, the Court’s decision upends precedent and adds confusion to the law,” said BJC General Counsel Holly Hollman. “While claiming to stand up for churches, the Court ignores their distinct nature as centers of religious exercise. The decision does not create a free exercise right to government funding of religion, but it unnecessarily blurs the line that ensures religion flourishes on its own.”

From the Brief
“The historical fight for disestablishment, led by Baptists and other religious dissenters, is well documented. Far from discriminating against religion, disestablishment marked an essential step toward the protection of individual religious liberty. Disestablishment ensured that churches would not be funded through the coercive power of the state, but through the voluntary offerings of adherents, thus providing a constraint on government and a measure of religious liberty for individuals — to fund or refuse to fund religious institutions — that had long been denied.”

“Missouri’s categorical exclusion of churches in its scrap tire program is firmly rooted in the state’s constitutional law. It allows the state to avoid the risk of funding religion or policing the line between religious and nonreligious activity on church facilities.”

“In this case, Missouri certainly does not prevent the Trinity Lutheran Church from building, improving, or operating its facilities consistent with its religious calling. Nor does it prevent the Church from having a playground or a preschool, and operating them consistently with its ministry priorities and community outreach efforts. Missouri is simply refusing to fund a capital improvement project for the Church, consistent with its three bright-line constitutional provisions, which are similar to provisions found in most other states’ constitutions as well. It would profoundly upend our constitutional history, state and federal, to require Missouri to fund the improvement of church property.”

“Whatever disputes exist about the historical meaning of no establishment, there is little question that avoiding tax support for churches was a central concern of the Founding era.”


Decidedly narrow, deeply troubling
Holly Hollman, August/September 2017

Read BJC’s brief in the case (PDF)

Podcast: Holly Hollman and Jennifer Hawks discuss BJC’s brief
(July 2016)

Church, state and scrap tires: What’s at stake?
Oral argument recap by Holly Hollman (June 2017)

Hollman’s remarks to reporters after oral argument
(April 19, 2017)

To avoid government meddling, the state should not fund churches
Hollman article for Religion News Service (April 20, 2017)

Ban on state funding of churches protects independence
Hollman article for SCOTUSblog symposium (August 9, 2016)