Legal Updates


July 18, 2017

The United States Supreme Court recently sent two groups of cases involving private religious schools back to lower courts for reconsideration based on the Court’s decision in Trinity Lutheran Church of Columbia v. Comer.  The Court’s rulings indicate that the Court may extend greater protection to religious schools when they apply for public funds in a variety of situations.

The Trinity Lutheran Decision

In the Trinity Lutheran case, the Missouri Department of Natural Resources denied Trinity Lutheran Church Child Learning Center the opportunity to seek a state grant because it was a church-based facility and program.  The grant program involved in the case provided reimbursement for the costs associated with installing a playground surface made from recycled tires.

However, the Department, which administered the program, had a strict, express policy of denying grants to any applicant owned or controlled by a church, sect, or other religious entity.  As a result, while 14 grants were provided to applicants under the program and the Center ranked fifth out of 44 applicants, the Department nevertheless disqualified the Center because it was a church-based childcare and learning center.

The U.S. Supreme Court concluded that the Department’s policy violated the Center’s rights under the Free Exercise Clause of the First Amendment by denying the church access to an otherwise available public benefit because of its religious status. 

The Court noted that denying access to a generally available public benefit solely because of an individual’s or group’s religious identity penalizes the free exercise of religion.  The Court reasoned that the Department’s policy did exactly that, because it disqualified a religious organization from receiving funds based solely on its religious identity, rather than based on the funding’s purposes or the activities that the funds would support.  As a result, the Court concluded that Trinity Lutheran was different from other cases in which the Court found that a denial of funding was Constitutionally permissible or even required to avoid unlawful sponsorship of religion, because Trinity Lutheran was denied funding based on what it was, not on what it proposed to do with the money.

Cases Affected By The Trinity Lutheran Case

When the Trinity Lutheran case was decided, the Court had not yet acted on petitions seeking review in two other sets of cases that were of considerable interest to public educators.

The first case arose in New Mexico and involved a state textbook lending program for private schools.  In New Mexico Association of Nonpublic Schools v. Moses, the New Mexico Supreme Court determined that a provision of the state constitution barred religious schools from participating in the program. 

The Petitioner seeking U.S. Supreme Court review claimed that the New Mexico high court’s decision “shut down an 83-year-old program providing secular textbooks to New Mexico schoolchildren,” adding that “[w]hen state officials deny needed secular services to children solely based on their religious identity, the Blaine Amendments’ ugly history repeats itself.”[1]

The second group of cases arose in Colorado and involved an effort by a county school district to create a tuition-scholarship program for students to attend private schools, including religious schools. In Doyle v. Taxpayers for Public Education, Douglas County School District v. Taxpayers for Public Education, and Colorado State Board of Education v. Taxpayers for Public Education, the Colorado Supreme Court blocked the programs based on a "no aid" provision in the Colorado state constitution that generally prohibited providing public funds to religious institutions.

Douglas County petitioned the U.S. Supreme Court to review the decisions.  The County contended that Douglas County School District had simply created a program that provides parents of qualifying students with monetary scholarships, which are then used to offset tuition at participating private schools.  The County urged that the mere fact that some of the schools were religiously affiliated did not mean that the program amounted to unconstitutional sponsorship of religion, contending that “this neutral and generally available aid program involving genuine and independent private choice is clearly permissible under the federal Constitution.”

The U.S. Supreme Court issued its decision in the Trinity Lutheran case on June 26, 2017, the last day of the Court’s term.  The next day, the Court issued a series of summary orders, including orders to send the New Mexico and Colorado cases back to lower courts for reconsideration in light of its Trinity Lutheran decision.  Significantly, the Court granted each of the petitions for review, but also vacated the judgments of the New Mexico and Colorado Supreme Courts that had been appealed from and directed that the state supreme courts give their respective cases “further consideration in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017).”[2]  As a result, while the U.S. Supreme Court did not issue more detailed, instructive rulings on the issues presented in these cases, the Court was still prepared to vacate both state supreme courts’ decisions and directed them to reconsider their rulings in light of Trinity Lutheran.

The Legacy of Trinity Lutheran

Trinity Lutheran does not -- strictly speaking -- create a mandate that the government provide funding for religious groups or institutions, such as churches.  Instead, Trinity Lutheran indicates that the government cannot treat religious organizations differently than secular groups when those religious groups seek public benefits (such as funding) that are offered to the public as a whole, provided that the religious groups do qualify for those benefits and use them for secular purposes.

It is too early to be certain how Trinity Lutheran will be applied in other contexts by other courts.  However, it is clear that Trinity Lutheran will be debated for years to come in cases that involve religious groups and institutions seeking public funding.  That debate will inevitably involve schools and higher education institutions, as it already has with public education programs in Colorado and New Mexico.

The challenge that Trinity Lutheran presents for public institutions attempting to follow the U.S. Supreme Court’s direction is equally clear.  All religious groups and institutions -- at least to a point -- engage in arguably secular activities, whether it is installing a new playground surface or some other pursuit.  While providing public funds for a playground is different from providing public funds to construct pews or an altar, religious institutions that receive that funding are still arguably strengthened by financial support for their secular as well as their religious activities; to that extent, religion is arguably advanced by such expenditures.  At the same time, however, religious groups are comprised of citizens who have no less right to public resources than any other citizens, provided that the lines drawn by our Constitution are not crossed.

Trinity Lutheran requires public institutions to meet this challenge:  they must grapple with the question of whether allowing religious institutions to apply or compete for public resources is constitutionally required or if, on the other hand, doing so crosses the line between permitting all citizens equal access to public resources and providing those resources to advance religion.

For questions regarding this article, please contact the author, Attorney Kirk D. Strang (email:; telephone: 844.626.0906 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney. 

[1] The term “Blaine Amendment” generally refers to a constitutional amendment that prohibits public funding for churches and religious groups.  These amendments are named after James Blaine, a Congressman who led an initiative to amend the U.S. constitution to prohibit public funding for religious schools.

[2] The full text of the Court’s Order in the Colorado cases states “The petitions for writs of certiorari are granted. The judgments are vacated, and the cases are remanded to the Supreme Court of Colorado for further consideration in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017).”  Virtually identical language is used in the Court’s Order in the New Mexico case.

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