Category Government Programs
Title Christian Schools Gain Access to State Funding Programs
Author/s Michael J. Allison, JD, CPCU
Preview Christian Schools Gain Access to State Funding Programs - The U.S. Supreme Court's Recent Trinity Lutheran Ruling

Christian Schools Gain Access to State Funding Programs
The U.S. Supreme Court's Recent Trinity Lutheran Ruling  

By: Michael J. Allison, JD, CPCU

As Christian schools navigate an ever-changing cultural landscape, the challenges of maintaining a school's sincerely held religious beliefs remain front-and-center. A recent high court ruling offers hope to Christian educational institutions with respect to at least some government funding programs.

On June 26, 2017, two years after its landmark decision legalizing same-sex marriage, the U.S. Supreme Court again issued a decision that could have a far-reaching impact on religious freedom. In a 7-2 ruling, the Supreme Court held that the First Amendment prohibits states from blocking access to generally available public benefit programs based purely on religious grounds. Put simply, states cannot deny ministry organizations access to public grants or other state-generated benefits simply because the organization has a religious purpose.  

The Case: Trinity Lutheran Church of Columbia, Inc. v. Comer  

Trinity Lutheran Church operated a preschool and daycare in Boone County, Missouri, with approximately 90 children from various religions. In 2012, Trinity wished to renovate its playground area by replacing pea gravel with a softer pour-in-place rubber surface. Trinity applied for a grant offered by the Missouri Department of Natural Resources (DNR) that provided recycled tires for the rubber surfacing. The DNR awarded grants on a competitive basis to nonprofit organizations that met certain criteria, including area poverty levels and the nonprofit organization's plan to promote recycling. Trinity ranked fifth among 44 nonprofit applicants and the department awarded 14 grants. Trinity was declared ineligible for the grant program, however, because it was a religious nonprofit.  

The department strictly enforced a policy to deny grants to all applicant organizations that were owned or controlled by a church, sect, or other religious entity. The DNR based its position on Article I, Section 7 of the Missouri Constitution, which provides that:
No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.  

Citing this provision, the DNR interpreted the Missouri Constitution as prohibiting the state from conveying funding or other benefits to religious nonprofits.  

Trinity filed suit against the Director of the Department of Natural Resources, claiming a violation of Trinity's First Amendment rights. The trial court dismissed Trinity's case and the Court of Appeals affirmed, holding that Missouri could rely on an applicant's religious status to deny benefits. The U. S. Supreme Court decided to hear the case to answer the question of whether a state can deny access to public benefits simply because the applicant organization is affiliated with a church.  

A Landmark Decision  

Chief Justice Roberts, writing for the majority, began his legal opinion by citing the First Amendment to the U.S. Constitution. The First Amendment provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first provision is known as the Establishment Clause, which simply means that Congress is prohibited from "establishing" (or adopting) a religion. All of the parties agreed that the Establishment Clause would not prevent Missouri from awarding the grant to Trinity. Instead, the case hinged on the second provision-the Free Exercise Clause. The Free Exercise Clause protects citizens' rights to practice religion as they wish without fear of unequal treatment under the law.  

The Court recognized that the Department's policy clearly discriminated against Trinity based solely on its religious character. Trinity was forced to make a choice: "It may participate in an otherwise available benefit program or remain a religious institution." The Court noted that Trinity was not claiming an entitlement to the grant, but only that it had a right to participate in the program without disavowing its religious character. In applying the Constitution to these facts, the Supreme Court held:
The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution..., and cannot stand.  

Justice Breyer, who is historically more liberal on religious freedom and social issues, wrote a concurring opinion, which provides:
The Court stated in [a previous case] that, "cutting off church schools from [such] general government services as ordinary police and fire protection ... is obviously not the purpose of the First Amendment." Here the State would cut Trinity Lutheran off from participation in a general program designed to secure or to improve the health and safety of children. I see no significant difference.  

A Curious Footnote

The Supreme Court's holding in Trinity would broadly seem to prevent states from denying access to public grants or other public benefits simply because an organization is religious in nature. This is somewhat clouded by a curious footnote included in Chief Justice Roberts' opinion, which states, "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."  

The footnote did not gain majority support since the newest Justice, Neil Gorsuch, and the second-most tenured justice, Clarence Thomas, specifically took issue with this footnote. Justice Gorsuch stated:
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.  

What Does This Ruling Mean for Schools and School Voucher Programs?  

The clear take-away from Trinity Lutheran is that all Christian schools are eligible for health and safety grants and similar programs that are otherwise generally open to the public-and Christian schools can't be excluded from such programs merely because they advance a religious or spiritual purpose.  

What remains to be seen, however, is how broadly this case will be interpreted by other lower courts across the U.S. In the weeks since the Supreme Court's ruling, discussion has focused largely on publicly funded school voucher programs. Several states have constitutional provisions similar to Missouri, and interpret them as prohibiting Christian schools from participating in voucher programs, education tax credits, or education savings accounts. There are many who believe Trinity Lutheran stands for the proposition that a state's denial of a voucher to Christian schools reflects unlawful discrimination. Others believe that the Trinity Lutheran ruling does not extend this broadly.

In light of Chief Justice Roberts' attempt to narrow the holding through a footnote, and a scathing dissent by Justice Sotomayor who complained that this case represents a "startling departure" from precedent, it's likely that lower courts will inconsistently apply the holding. When this happens, it will be up to the U.S. Supreme Court to clarify in a future case how the First Amendment will apply to government-funded voucher programs and similar education-focused state benefits.  

As highlighted by the recent religious freedom ruling in Trinity Lutheran, the U.S. Constitution continues to provide First Amendment protection to Christian schools, though whether this protection will extend access to state vouchers and similar benefit programs will likely remain in doubt until another case makes it way up to the Supreme Court.  

For more information on Religious Freedom issues facing Christian schools and other ministries, please visit  

Michael Allison serves as Vice President, Chief Counsel, and Secretary for Brotherhood Mutual Insurance Company. He is a past Christian school board member and committee chair, and he regularly conveys legal information to ministry representatives and Christian education leaders around the country.  

LLU 28.1  

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.  

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