Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. ___ (2017)

Annotate this Case

SUPREME COURT OF THE UNITED STATES

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No. 15–577

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TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 26, 2017]

Justice Thomas, with whom Justice Gorsuch joins, concurring in part.

The Court today reaffirms that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified,” if at all, “only by a state interest ‘of the highest order.’ ” Ante, at 6. The Free Exercise Clause, which generally prohibits laws that facially discriminate against religion, compels this conclusion. See Locke v. Davey, 540 U. S. 712 –727 (2004) (Scalia, J., dissenting).

Despite this prohibition, the Court in Locke permitted a State to “disfavor . . . religion” by imposing what it deemed a “relatively minor” burden on religious exercise to advance the State’s antiestablishment “interest in not funding the religious training of clergy.” Id., at 720, 722, n. 5, 725. The Court justified this law based on its view that there is “ ‘play in the joints’ ” between the Free Exercise Clause and the Establishment Clause—that is, that “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Id., at 719. Accordingly, 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,” id., at 720, of discrimination against religion remains troubling. See generally id., at 726–734 (Scalia, J., dissenting). But because the Court today appropriately construes Locke narrowly, see Part III–B, ante, and because no party has asked us to reconsider it, I join nearly all of the Court’s opinion. I do not, however, join footnote 3, for the reasons expressed by Justice Gorsuch, post, p. 1 (opinion concurring in part).

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