Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP


Supreme Court to State and Local Governments: Religious Entities Cannot be Excluded from Public Benefits

Image Credit: Sonny Abesamis

On Monday, the Supreme Court announced that Missouri violated the First Amendment’s Free Exercise Clause when it denied public funds to Trinity Lutheran Church.  In the 7-2 decision in Trinity Lutheran, Chief Justice Roberts clarified that a church could not be excluded from competing with other secular organizations for government grant money simply because of their religious status.  The majority distinguished prior precedents denying public funds to religious organizations or individuals on the basis of those would-be recipients’ proposed use of the funds.

Trinity Lutheran Church applied for funding from a state grant program created to assist in purchasing rubber playground surfaces.  Although the Church’s application ranked 5th out of more than 40 applications, the State denied its application solely on the ground that it was a church.  Its justification was that the Missouri Constitution, like many other state constitutions, contains a provision prohibiting the grant of public funds to aid any church or religious denomination.

According to the Court, the State’s interpretation of that constitutional provision forces churches to “renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified.”  It articulated the constitutional conflict under the Free Exercise Clause this way – “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.”  That forced upon Trinity Lutheran an unconstitutional choice: participate in the grant program for government benefits or stop operating as a church.  The Court viewed such a choice as discriminatory and thus subject to “strict scrutiny” – often the death knell for laws challenged as unconstitutional.

In Footnote 3, which was joined by only four members of the Court, the majority opinion attempts to cabin this decision to the facts of the case.  The footnote reads – “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.”  That attempt, however, was rejected by Justices Gorsuch and Thomas, who see no bright line between religious status and religious exercise.  And Justice Sotomayor’s dissent, joined by Justice Ginsburg, sees a weakening of the entire doctrine of the separation of church and state.  She warned: “The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”

This case will require state and local governments to reexamine their treatment of churches as recipients of government funds and other public benefits under a variety of other programs and circumstances.  In fact, the Massachusetts Supreme Judicial Court is set to decide a similar issue involving a grant of Community Preservation Act funds for historic preservation of a church by the Town of Acton, which is represented by this firm. Oral argument on that case is currently scheduled for September 2017.

More information and commentary on the Trinity Lutheran decision is available at

About the Author

Nina L. Pickering-Cook – Partner

Nina helps public and private sector clients navigate issues relating to real estate, construction, land use and public law, including litigation where necessary.

Posted In: Municipal Law

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