Trinity Lutheran and Free Exercise as a Non-Discrimination Norm

by vaughn_admin  //  

October 3, 2017

On June 26, the Supreme Court held 7-2 that the Missouri Department of Natural Resources violated the First Amendment’s free-exercise guarantee when it deemed Trinity Lutheran Church categorically ineligible to receive a grant under Missouri’s Scrap Tire Program simply because it is a church, challenging a provision in the Missouri constitution and similar provisions in 37 other states known as Blaine Amendments

The Trinity Lutheran decision, however, strongly suggests that the Court may be likely to conclude other applications of Blaine amendments violate the First Amendment.

In this series of articles, we asked authors to consider the implications of the Court’s ruling are for other applications of Blaine Amendments and similar state-law restrictions. 

To see all articles in this series visit: Trinity Lutheran and Blaine Amendments

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June 26, 2017 was a day of mixed reactions as the Supreme Court held in Trinity Lutheran Church of Columbia, Inc. v. Comer[1] that excluding a church-affiliated school from a state funding program violated the Free Exercise Clause. By in large, the decision was hailed as a victory for religious liberty by proponents of accomodationist views of the religion clauses, and criticized as a further crumbling of the wall between church and state by those of the separationist school.

In coming to its conclusion, the Court was convinced that the State’s denial was a violation of the Free Exercise clause because excluding Trinity Lutheran was discrimination “solely on account of religious identity.”[2]

What we do not know is whether the case stood for a broad proposition (that it is unconstitutional for states to discriminate against religion when offering state funding), or a narrow proposition (as the much-cited footnote 3 of the majority opinion put it, that “this case involves express discrimination based on religious identity with respect to playground resurfacing” and does not “address religious uses of funding or other forms of discrimination”). The Court also side-stepped the explosive question of whether so-called state Blaine Amendments[3] violate the Free Exercise Clause. Thus, the elephant in the room remains – whether these state law provisions are a legitimate basis for denying religious schools the right to participate in state educational voucher programs.

Considered narrowly, it is difficult to begrudge the school’s ability to participate in the tire-scrap program at issue in the case. But as the dissenting opinion of Justice Sotomayor (joined by Justice Ginsburg) points out, the Court holds for the first time “that the Constitution requires the government to provide public funds directly to a church.” Thus, the dissenters are right to be worried that this case may significantly reconceptualize the relationship between civil government and religious institutions. From the beginning, direct state funding of religion has been a central concern of both the meaning of the non-Establishment of religion as well as the Free Exercise of religion. If Trinity Lutheran opens the spigots of state funding of religion, or if Free Exercise is broadly interpreted to require state funding of religion, it will have been a dubious victory for religious freedom. To win the right to a place at the government trough is not exactly a robust conception of religious freedom, and certainly not what the Founders had in mind.

Trinity Lutheran may be a pyrrhic victory for religious freedom for an even more fundamental reason. To put it as simply as possible, Trinity Lutheran continues the Supreme Court’s trend in recent years of interpreting both the Free Exercise Clause and the Establishment Clause as non-discrimination norms rather than as religious freedom norms.

The Free Exercise clause broadcasts its concern with religious freedom with its name. The Establishment Clause, as well, has historically been understood primarily as a mechanism for ensuring religious freedom. We might expect the “Free Exercise” clause, especially, to focus on the question of whether the denial of participation in the state program was a violation of the religious freedom of Trinity Lutheran, and the answer would almost certainly be, “no.”

Instead, the Court asks whether the exclusion from the state program amounts to discrimination against religion. So framed, the answer to the question is quite naturally, “yes.” As the majority frames it, the issue is whether the state is denying a “generally available benefit solely on account of religious identity.”[4] Since the state is doing this, the Court concludes that the policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”[5] The various opinions in the case are filled with references to non-discrimination – at least 25 by my count, including 15 in the majority opinion.

But there may be a cascade of unintended consequences if Free Exercise is interpreted primarily as a non-discrimination norm. Consider the Masterpiece Cake Shop case currently pending before the Supreme Court involving the Colorado baker who refused to bake a cake for a gay wedding. His refusal resulted in being held in violation of a state non-discrimination statute that prohibits discrimination against people based on their sexual orientation. His response, in part, is that it would violate his religious freedom to be forced to participate in delivering a message with which he disagrees. But if the key to Free Exercise is non-discrimination, as the Trinity Lutheran case strongly implies, then the Colorado baker seems to be skating on thin Free Exercise ice, because there is a strong argument that he was discriminating. His point, of course, is that Free Exercise and Freedom of Expression give him the right to not be forced to bake the cake – or to put it more provocatively, the right to discriminate.

It may be hard for religious freedom to have it both ways – to insist that Free Exercise means that it is unconstitutional to discriminate against religious groups, per Trinity Lutheran, but that it is constitutionally protected Free Exercise to discriminate against a gay couple wanting a wedding cake. This might be derided as demanding to have one’s cake and eat it, too.

If, on the other hand, Free Exercise implies freedom rather than nondiscrimination, the baker has a much more straightforward argument. Like the children in the World War II era flag salute cases, he can argue that it violates his religious freedom to be forced to salute – whether the flag in question is the Stars and Stripes or the Rainbow Flag.

Brett G. Scharffs is the Director, International Center for Law and Religion Studies, Brigham Young University, and Rex E. Lee Chair and Professor of Law, BYU Law School. His teaching and scholarly interests include law and religion, legal reasoning and rhetoric, philosophy of law, and legislation and regulation. Thanks to Kyle Harvey, BYU Law Class of 2019, for his assistance with this post.


[1] No. 15–577 (U.S. June 26, 2017) [hereinafter Trinity Lutheran].  

[2] Id. at 2.

[3] Blaine Amendments are state law provisions that prohibit funding of religion, but which often (although perhaps not in the case of Missouri’s law) were enacted based upon anti-Catholic bias. See Frank S. Ravitch, A 147-Year-Old Dispute Between Church and State Spills Onto a School Playground, OBSERVER (May 4, 2017), (“[S]ome historians and others have made strong arguments that these clauses were based in anti-Catholic bigotry.”).

[4] Trinity Lutheran, No. 15–577 at 2.

[5] Id.

All views and opinions presented in this essay are solely those of the author and publication on Cornerstone does not represent an endorsement or agreement from the Religious Freedom Institute or its leadership.