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On the Supreme Court Case, Trinity Lutheran, and Its Potential Implications for School Vouchers

June 27, 2017

On June 26, 2017, the Supreme Court of the United States (SCOTUS) issued a decision on the Trinity Lutheran vs. Comer case.

One great question concerns the bearing that the Trinity Lutheran decision will have on future SCOTUS decisions concerning the use of public money to pay for vouchers to private, religious schools.

I address this possible bearing near the end of this post. (Disclaimer: I am not a lawyer.)

But first, let’s turn our attention to Trinity Lutheran vs. Comer. Here is some background on the case, as included in the link above:

The Trinity Lutheran Church Child Learning Center is a Missouri preschool and daycare center. Originally established as a nonprofit organization, the Center later merged with Trinity Lutheran Church and now operates under its auspices on church property. Among the facilities at the Center is a playground, which has a coarse pea gravel surface beneath much of the play equipment. In 2012, the Center sought to replace a large portion of the pea gravel with a pour-in-place rubber surface by participating in Missouri’s Scrap Tire Program. The program, run by the State’s Department of Natural Resources, offers reimbursement grants to qualifying nonprofit organizations that install playground surfaces made from recycled tires. The Department had a strict and express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity. Pursuant to that policy, the Department denied the Center’s application. In a letter rejecting that application, the Department explained that under Article I, Section 7 of the Missouri Constitution, the Department could not provide financial assistance directly to a church. The Department ultimately awarded 14 grants as part of the 2012 program. Although the Center ranked fifth out of the 44 applicants, it did not receive a grant because it is a church.

Trinity Lutheran sued in federal district court because it believed that denial of participation in the program violated the First Amendment Free Exercise clause; in other words, the church believed that it was being wrongly excluded from the recycled tire program for its playground because the law “prohibited the free exercise” of its religion.

The federal district court dismissed the suit for the following reason:

The Free Exercise Clause, the court stated, prohibits the government from outlawing or restricting the exercise of a religious practice, but it generally does not prohibit withholding an affirmative benefit on account of religion.

The district court based its dismissal on another case, Locke vs. Davey, as noted below (from the Trinity Lutheran vs. Comey link above):

The District Court likened the case before it to Locke v. Davey, 540 U. S. 712, where this Court upheld against a free exercise challenge a State’s decision not to fund degrees in devotional theology as part of a scholarship program. The District Court held that the Free Exercise Clause did not require the State to make funds available under the Scrap Tire Program to Trinity Lutheran. A divided panel of the Eighth Circuit affirmed. The fact that the State could award a scrap tire grant to Trinity Lutheran without running afoul of the Establishment Clause of the Federal Constitution, the court ruled, did not mean that the Free Exercise Clause compelled the State to disregard the broader antiestablishment principle reflected in its own Constitution.

Note that in the Locke vs. Davey case (linked above), SCOTUS refers to “play in the joints” between establishment and free exercise clauses in the First Amendment.

Also note that the outcome involved a splicing of public funding for one degree (nonreligious) but not another (religious):

Washington’s exclusion of the pursuit of a devotional theology degree from its otherwise-inclusive scholarship aid program does not violate the Free Exercise Clause. This case involves the “play in the joints” between the Establishment and Free Exercise Clauses. … The State has merely chosen not to fund a distinct category of instruction. … That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces the conclusion that religious instruction is of a different ilk from other professions. Moreover, the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits, since it permits students to attend pervasively religious schools so long as they are accredited, and students are still eligible to take devotional theology courses under the program’s current guidelines. Nothing in the Washington Constitution’s history or text or in the program’s operation suggests animus towards religion. Given the historic and substantial state interest at issue, it cannot be concluded that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect. Without a presumption of unconstitutionality, Davey’s claim must fail. The State’s interest in not funding the pursuit of devotional degrees is substantial, and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here.

As regards the Trinity Lutheran vs. Comey outcome, the majority of the Court held that in this case, Locke vs. Davey does not hold since the recycled tires for the playground represent a “generally available benefit” denied “solely on account of religious identity”:

Held: The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. …

(a) This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. …In recent years, when rejecting free exercise challenges to neutral laws of general applicability, the Court has been careful to distinguish such laws from those that single out the religious for disfavored treatment. …It has remained a fundamental principle of this Court’s free exercise jurisprudence that laws imposing “special disabilities on the basis of . . .religious status” trigger the strictest scrutiny. …

(b) The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character. …the Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. … Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.

(c) The Department tries to sidestep this Court’s precedents by arguing that this case is instead controlled by Locke v. Davey. It is not. In Locke, the State of Washington created a scholarship program to assist high-achieving students with the costs of postsecondary education. Scholarship recipients were free to use state funds at accredited religious and non-religious schools alike, but they could not use the funds to pursue a devotional theology degree. At the outset, the Court made clear that Locke was not like the cases in which the Court struck down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” …Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.

The Court in Locke also stated that Washington’s restriction on the use of its funds was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy, an “essentially religious endeavor,” …. Here, nothing of the sort can be said about a program to use recycled tires to resurface playgrounds. …

(d) The Department’s discriminatory policy does not survive the “most rigorous” scrutiny that this Court applies to laws imposing special disabilities on account of religious status. … Yet the Department offers nothing more than Missouri’s preference for skating as far as possible from religious establishment concerns. In the face of the clear infringement on free exercise before the Court, that interest cannot qualify as compelling.

The above summary of the SCOTUS judgment is followed by a more detailed summary from the assenting justices as well as the individual opinions of several assenting justices as well as that of the two dissenting justices.

Justice Roberts delivered the Court’s opinion, “except as to footnote 3.” (Keep reading.)

The SCOTUS vote on Trinity Lutheran vs. Comey was 7-2. Justices Kennedy, Alito, and Kagan “joined in full,” and it seems that Breyer also fully supported the opinion even though he filed his own opinion. Two justices (Ginsburg and Sotomayer) joined in filing a dissenting opinion.

What I consider salient to the question of whether SCOTUS will extend the findings of the Trinity Lutheran case to that of cases concerning the use of public money for vouchers to religious schools, three assenting justices (Roberts, Thomas, and Gorsuch) objected to footnote 3, which refers to Locke vs. Davey and is prefaced in part as follows:

As the Court put it, Washington’s scholarship program went “a long way toward including religion in its benefits.” … Students in the program were free to use their scholarships at “pervasively religious schools.” Ibid. Davey could use his scholarship to pursue a secular degree at one institution while studying devotional theology at another. … He could also use his scholarship money to attend a religious college and take devotional theology courses there. … The only thing he could not do was use the scholarship to pursue a degree in that subject.
In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply. 3

And the footnote:

3 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.

Justice Thomas (with Justice Gorsuch joining) explains his disagreement with footnote 3 (an excerpt):

Locke did not subject the law at issue to any form of heightened scrutiny. But it also did not suggest that discrimination against religion outside the limited context of support for ministerial training would be similarly exempt from exacting review. This Court’s endorsement in Locke of even a “mil[d] kind,” … of discrimination against religion remains troubling.

And an excerpt from Justice Gorsuch (with Justice Thomas joining) on his disagreement with footnote 3:

I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way. …

Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” … And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.

Even though Justice Breyer did not disagree with footnote 3, he included his own individual, brief opinion that ends as follows:

Public benefits come in many shapes and sizes. I would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.

So, when it comes to the question of whether this SCOTUS would find that using public money to pay for vouchers to private, religious schools, here is what I see based on the outcome of Trinity Lutheran vs. Comey:

(Remember: I am not a lawyer.)

First of all, the justices are only able to respond to specific cases as filed. If a position is not challenged in a particular case, the justices do not rule on it anyway because the justices see a point that a petitioner missed.

But let’s say that someone files a pro-voucher case based on Trinity Lutheran vs. Comey.

At this point, I think that the judgment could be in favor of using the voucher to attend the religious school but that the voucher money cannot be used to pay for religious courses, or some such arrangement in which the majority of the Court qualifies usage of the money for the “general benefit” of attending the religious school without having the money fund any religious aspect of a student’s general education at the religious school.

In sum, such a judgment seems likely to produce the very situation that prompts private schools to be private in the first place: freedom from the requirements attendant on accepting public funding.

What Trinity Lutheran vs. Comey shows is that there are two justices who would likely wholly oppose the use of public funds to pay for attendance at private, religious schools (Sotomayer and Ginsburg); two who would likely be in full support for such funding without qualification (Thomas and Gorsuch); three who appear likely to support public funds for vouchers to private, religious schools, with qualification (Kennedy, Alito, and Kagan), and two who appear to be on the “maybe qualify how the money is spent, maybe not” fence (Roberts and Breyer).

I believe that at this point, the majority would decide in favor of such vouchers, with qualification– a position that I do not believe is either desired nor comfortable to school voucher advocates.

Of course, much depends upon the wording of a given lawsuit.

More to come, America. More to come.

us-supreme-court-2  US Supreme Court


Schneider is a southern Louisiana native, career teacher, trained researcher, and author of two other books: A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education and Common Core Dilemma: Who Owns Our Schools?.

both books

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  1. “I believe that at this point, the majority would decide in favor of such vouchers, with qualification– a position that I do not believe is either desired nor comfortable to school voucher advocates.”

    As one who is opposed to vouchers for private schools, this is neither desirable nor comforting.

  2. speduktr permalink

    I still cannot fathom how refusing them money to resurface a playground violates their freedom to practice their religion. I didn’t know that playgrounds were an integral part of the Lutheran faith.

  3. Splendid Anomaly permalink

    The restriction on moneys for church schools in many states apparently goes back to “Blaine amendments” added to state constitutions as a result of anti-Catholic sentiment. Protestants didn’t mine religion in the public schools until the Catholics showed up and wanted public schools that didn’t promote a brand of Christianity in conflict with their own. And in this case, the playground was available not just to Lutherans, but to the public generally, as was the state benefit.

    Vouchers, on the other hand, privilege certain religious groups by funding their education programs AT THE EXPENSE of public schools. A child who gets a voucher is steering $$ away from public benefit, and receives a private benefit (religiously-oriented instruction) at public expense.

    I think that because this case was decided on such narrow grounds, it will not be much use to the pro-voucher crowd.

    • We’ll see. Each Blaine amendment is worded differently.

    • bethree5 permalink

      Agree, Splendid Anomaly. These were general state moneys for the purpose of a neutral socially-beneficent cause, i.e., safety of state resident kids on playgrounds.

      Especially if it is true as you say that this was an ungated playground available to the general public outside school hours. I raisethat point only because in my NJ town, private PreK playgrounds, whether church or secular, are not intended for public use outside school hours– & are gated to some degree– because school playground ins does not generally include public use. However, regardless– if the state deems that rubberized playground surfaces are safest for all state kids, I see no reason to deny state grants for rubberizing playground surface to religious schools.

      The point is: there is a notable distinction between making state grants available to pay for safe playgrounds for all state PreK students (whether public or non-sectarian private or religious students)– vs diverting municipal RE taxes which fund local district public schools to fund the operation of religious/ private schools via backpack vouchers.

      • bethree5 permalink

        However, I have to note: if it is OK for state grants to fund rubberized paving of religious– & non-sectarian private-school playgrounds…. It is also OK for the state to collect taxes for services rendered from heretofore non-taxable 501(c3)/(4) entities such as non-sectarian & religious private schools… School choice is a 2-way street.

  4. ira shor permalink

    SCOTUS has turned a radical destructive corner here whose implications will play out in the next year or two as privatizing charters and religious schools aggressively demand more and more public tax levies to support their non-public activities. We’re being dragged down several anti-democratic paths here, a pro-corporate empowerment road represented by Citizens United and a pro-church road represented by the playground decision. Unless there is an eruption of democratic movements in America, we will have more and more of our wealth and national life in the hands of religious and corporate advocates and organizations.

    • bethree5 permalink

      Why would you imagine that we will not tax these non-public entities if they are receiving tax monies to operate? And once we start taxing them, will we not begin to demand accountability for tax dollars spent [as we do for public schools]? Non-sectarian & religious private schools– once they start receiving backpack operating funds from public taxes– will soon enough have to account for hard-earned municipal $ spent.

      Charter schools have been getting away with it– because they are “public” >wink, wink< schools. In many states, they're founded at the state level despite local will [thanks to state actors w/investments in charters or paid off by charter lobbyists] yet funded at the local level despite backlash from locals — they have been freeloading off municipal taxes like vampires, siphoning best [whitest/ richest/ smartest] students away into charters & leaving the publics limping w/depleted funds to educate the poorest, the ESL, the SpEd, the behavior-issued bounced from charters. That will just keep on happening until taxpayers glean the degree to which they're being ripped off– as evidenced by multiple frauds such as posted here– plus the inevitable excess spending caused by running a two-tier school system].

      But voucher schools are quite another matter, & will be brought to heel sooner.

  5. Cathy in Denver permalink

    It seems to me that using public funds to furbish the church playground converts the playground to a public venue at which children and families of all denominations, or none, may play, meet, and use the facilities. I, for one, oppose the use of public tax dollars to make improvements to any church/religious affiliate’s property. However, since the church feels free to exert it’s right to public benefits, the public is entitled to benefit from what it paid for.

    • anonymous permalink

      Cathy, that’s an angle I had not thought of before. In public schools, we’re used to sharing our spaces with community groups who meet after school. It is their right and we are happy to oblige. Girl Scout troops, community classes, and events that require a gym, these all help make connections between our school and neighborhood.

      Are charter schools subject to that same open door policy? Can neighborhood groups book that space for events in the same manner? Now I’m curious.

    • bethree5 permalink

      Cathy in Denver: exactly right. Many on comment threads have depicted this Lutheran PreK playground as ungated & open to public outside of school hours– & thus deserving of state funds to upgrade its surface, make it safer. I can’t help wondering about that. Doesn’t square w/my NJ-town experience, where we have many sectarian PreK playgrounds which are semi-gated & posted w/disclaimers. Private-PreK playgrounds are insured by their schools/ churches, & safety is not guaranteed to unsupervised public visitors after-hours. The only playgrounds free & safe for all after-school-hours are those of our public schools.

  6. cemab4y permalink

    The Supreme Court has already ruled on the constitutionality of redeeming school vouchers at religiously-operated schools. See Zelman v. Simmons-Harris (2002). see

    The issue has been settled constitutional law for over 15 (fifteen) years.

    It is highly unlikely, that the Supreme Court will re-visit the issue. The court will probably not grant “certiorari”, to any case involving school choice/vouchers.

    • bethree5 permalink

      So, why is this playground case making a splash for school choice, considering that Zelman v Simmons-Harris already allowed 15 yrs ago that vouchers could co-exist w/the establishment clause?

      I suspect the difference is that this playground improvement was made directly by the state to a sectarian school [via a state grant].

      The Zelman v Simmons-Harris case was different: that case decided that (a)there was a general good — & neutral [non-sectarian] public-good goal, which was to provide low-income children w/alternatives to a “failing” local school– & (b) because tax $ was provided directly to families- to be used per their choice of school– so there was no “state/ religion entanglement”. That held, even tho 80%+ of alts to pubsch were religious– that was considered just facts on the ground; the point was, those were the available alternatives; local schools were considered “failing”, & the method of pmt did not “entangle state w/religion”.

      I do not see this SCOTUS decision as changing much: the 9 made a footnote making it clear this was a narrow decision & not to be extrapolatedto vouchers.

      Where the Z vs S-H decision fails as a support for expansion of voucherism as envisioned by Trump/DeVos is that it is pinned to low-income students whose local pubsch is ‘failing’.

  7. FLERP! permalink

    Small point here, a lot of your analysis is looking at the “syllabus” of the opinion, rather than the official opinion. When you’re citing a Supreme Court opinion, cite the actual opinion, not the syllabus.

    • I noted that I was citing from summary, and with that, post exceeded 2200 words.

      • FLERP! permalink

        Citing the actual opinion wouldn’t make your post any longer.

  8. It’s probably going to be the case that Kennedy is replaced by someone more Gorsuch-like, and soon. By the time we see if vouchers at religious schools runs afoul of establishment or not, it will all come down to John Roberts.

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