SUPREME COURT OF THE UNITED STATES
_________________
No. 15–577
_________________
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 Sotomayor, with whom Justice Ginsburg
joins, dissenting.
To hear the Court tell it, this is a simple case
about recycling tires to resurface a playground. The stakes are
higher. This case is about nothing less than the relationship
between religious institutions and the civil government—that is,
between church and state. 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. Its decision slights both our precedents and our history,
and its reasoning weakens this country’s longstanding commitment to
a separation of church and state beneficial to both.
I
Founded in 1922, Trinity Lutheran Church
(Church) “operates . . . for the express purpose of
carrying out the commission of . . . Jesus Christ as
directed to His church on earth.” Our Story,
http://www.trinity-lcms.org/story (all internet materials as last
visited June 22, 2017). The Church uses “preaching, teaching,
worship, witness, service, and fellowship according to the Word of
God” tocarry out its mission “to ‘make disciples.’ ” Mission,
http://www.trinity-lcms.org/mission (quoting Matthew 28:18–20). The
Church’s religious beliefs include its desire to “associat[e] with
the [Trinity Church Child] Learning Center.” App. to Pet. for Cert.
101a. Located on Church property, the Learning Center provides
daycare and preschool for about “90 children ages two to
kindergarten.”
Id., at 100a.
The Learning Center serves as “a ministry of the
Church and incorporates daily religion and developmentally
appropriate activities into . . . [its] program.”
Id., at 101a. In this way, “[t]hrough the Learning Center,
the Church teaches a Christian world view to children of members of
the Church, as well as children of non-member residents” of the
area.
Ibid. These activities represent the Church’s “sincere
religious belief . . . to use [the Learning Center] to
teach the Gospel to children of its members, as well to bring the
Gospel message to non-members.”
Ibid.
The Learning Center’s facilities include a
playground, the unlikely source of this dispute. The Church
provides the playground and other “safe, clean, and attractive”
facilities “in conjunction with an education program structured to
allow a child to grow spiritually, physically, socially, and
cognitively.”
Ibid. This case began in 2012 when the Church
applied for funding to upgrade the playground’s pea gravel and
grass surface through Missouri’s Scrap Tire Program, which provides
grants for the purchase and installation of recycled tire material
to resurface playgrounds. The Church sought $20,000 for a $30,580
project to modernize the playground, part of its effort to gain
state accreditation for the Learning Center as an early childhood
education program. Missouri denied the Church funding based on
Article I, §7, of its State Constitution, which prohibits the use
of public funds “in aid of any church, sect, or denomination of
religion.”
II
Properly understood then, this is a case about
whether Missouri can decline to fund improvements to the facilities
the Church uses to practice and spread its religious views. This
Court has repeatedly warned that funding of exactly this
kind—payments from the government to a house of worship—would cross
the line drawn by the Establishment Clause. See,
e.g., Walz
v.
Tax Comm’n of City of New York, 397 U. S. 664, 675
(1970) ;
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S. 819, 844 (1995) ;
Mitchell v.
Helms, 530 U. S. 793 –844 (2000) (O’Connor, J.,
concurring in judgment). So it is surprising that the Court
mentions the Establishment Clause only to note the parties’
agreement that it “does not prevent Missouri from including Trinity
Lutheran in the Scrap Tire Program.”
Ante, at 6.
Constitutional questions are decided by this Court, not the
parties’ concessions. The Establishment Clause does not allow
Missouri to grant the Church’s funding request because the Church
uses the Learning Center, including its playground, in conjunction
with its religious mission. The Court’s silence on this front
signals either its misunderstanding of the facts of this case or a
startling departure from our precedents.
A
The government may not directly fund religious
exercise. See
Everson v.
Board of Ed. of Ewing, 330
U. S. 1, 16 (1947) ;
Mitchell, 530 U. S., at 840
(O’Connor, J., concurring in judgment) (“[O]ur decisions provide no
precedent for the use of public funds to finance religious
activities” (internal quotation marks omitted)). Put in doctrinal
terms, such funding violates the Establishment Clause because it
impermissibly “advanc[es] . . . religion.”[
1]
Agostini v.
Felton, 521
U. S. 203 –223 (1997).
Nowhere is this rule more clearly implicated
than when funds flow directly from the public treasury to a house
of worship.[
2] A house of
worship exists to foster and further religious exercise. There, a
group of people, bound by common religious beliefs, comes together
“to shape its own faith and mission.”
Hosanna-Tabor Evangelical
Lutheran Church and School v.
EEOC, 565 U. S. 171,
188 (2012) . Within its walls, worshippers gather to practice and
reaffirm their faith. And from its base, the faithful reach out to
those not yet convinced of the group’s beliefs. When a government
funds a house of worship, it underwrites this religious
exercise.
Tilton v.
Richardson, 403
U. S. 672 (1971) , held as much. The federal program at issue
provided construction grants to colleges and universities but
prohibited grantees from using the funds to construct facilities
“ ‘used for sectarian instruction or as a place for religious
worship’ ” or “ ‘used primarily in connection with any
part of the program of a school or department of divinity.’ ”
Id., at 675 (plurality opinion) (quoting 20
U. S. C. §751(a)(2) (1964 ed., Supp. V)). It allowed the
Federal Government to recover the grant’s value if a grantee
violated this prohibition within twenty years of the grant. See 403
U. S., at 675
. The Court unanimously agreed that this
time limit on recovery violated the Establishment Clause. “[T]he
original federal grant w[ould] in part have the effect of advancing
religion,” a plurality explained, if a grantee “converted [a
facility] into a chapel or otherwise used [it] to promote religious
interests” after twenty years.
Id., at 683; see also
id., at 692 (Douglas, J., concurring in part and dissenting
in part);
Lemon v.
Kurtzman, 403 U. S. 602 –661
(1971) (Brennan, J., concurring);
id., at 665, n. 1
(opinion of White, J.). Accordingly, the Court severed the
twenty-year limit, ensuring that program funds would be put to
secular use and thereby bringing the program in line with the
Establishment Clause. See
Tilton, 403 U. S., at 683
(plurality opinion).
This case is no different. The Church seeks
state funds to improve the Learning Center’s facilities, which, by
the Church’s own avowed description, are used to assist the
spiritual growth of the children of its members and to spread the
Church’s faith to the children of nonmembers. The Church’s
playground surface—like a Sunday School room’s walls or the
sanctuary’s pews—are integrated with and integral to its religious
mission. The conclusion that the funding the Church seeks would
impermissibly advance religion is inescapable.
True, this Court has found some direct
government funding of religious institutions to be consistent with
the Establishment Clause. But the funding in those cases came with
assurances that public funds would not be used for religious
activity, despite the religious nature of the institution. See,
e.g., Rosenberger, 515 U. S., at 875–876 (Souter, J.,
dissenting) (chronicling cases). The Church has not and cannot
provide such assurances here.[
3] See
Committee for Public Ed. & Religious
Liberty v.
Nyquist, 413 U. S. 756, 774 (1973) (“No
attempt is made to restrict payments to those expenditures related
to the upkeep of facilities used exclusively for secular purposes,
nor do we think it possible within the context of these
religion-oriented institutions to impose such restrictions”). The
Church has a religious mission, one that it pursues through the
Learning Center. The playground surface cannot be confined to
secular use any more than lumber used to frame the Church’s walls,
glass stained and used to form its windows, or nails used to build
its altar.
B
The Court may simply disagree with this
account of the facts and think that the Church does not put its
playground to religious use. If so, its mistake is limited to this
case. But if it agrees that the State’s funding would further
religious activity and sees no Establishment Clause problem, then
it must be implicitly applying a rule other than the one agreed to
in our precedents.
When the Court last addressed direct funding of
religious institutions, in
Mitchell, it adhered to the rule
that the Establishment Clause prohibits the direct funding of
religious activities. At issue was a federal program that helped
state and local agencies lend educational materials to public and
private schools, including religious schools. See 530 U. S.,
at 801–803 (plurality opinion). The controlling concurrence assured
itself that the program would not lead to the public funding of
religious activity. It pointed out that the program allocated
secular aid, that it did so “on the basis of neutral, secular
criteria,” that the aid would not “supplant non-[program] funds,”
that “no . . . funds ever reach the coffers of religious
schools,” that “evidence of actual diversion is
de minimis,”
and that the program had “adequate safeguards” to police
violations.
Id., at 867 (O’Connor, J., concurring in
judgment). Those factors, it concluded, were “sufficient to find
that the program . . . [did] not have the impermissible
effect of advancing religion.”
Ibid.
A plurality would have instead upheld the
program based only on the secular nature of the aid and the
program’s “neutrality” as to the religious or secular nature of the
recipient. See
id., at 809–814. The controlling concurrence
rejected that approach. It viewed the plurality’s test—“secular
content aid . . . distributed on the basis of wholly
neutral criteria”—as constitutionally insufficient.
Id., at
839. This test, explained the concurrence, ignored whether the
public funds subsidize religion, the touchstone of establishment
jurisprudence. See
id., at 844 (noting that the plurality’s
logic would allow funding of “religious organizations (including
churches)” where “the participating religious organizations
(including churches) . . . use that aid to support
religious indoctrination”).
Today’s opinion suggests the Court has made the
leap the
Mitchell plurality could not. For if it agrees that
the funding here will finance religious activities, then only a
rule that considers that fact irrelevant could support a conclusion
of constitutionality. The problems of the “secular and neutral”
approach have been aired before. See,
e.g., id., at 900–902
(Souter, J., dissenting). It has no basis in the history to which
the Court has repeatedly turned to inform its understanding of the
Establishment Clause. It permits direct subsidies for religious
indoctrination, with all the attendant concerns that led to the
Establishment Clause. And it favors certain religious groups, those
with a belief system that allows them to compete for public dollars
and those well-organized and well-funded enough to do so
successfully.[
4]
Such a break with precedent would mark a radical
mistake. The Establishment Clause protects both religion and
government from the dangers that result when the two become
entwined, “
not by providing every religion with an
equal
opportunity (say, to secure state funding or to pray in the
public schools), but by drawing fairly clear lines of
separation between church and state—at least where the
heartland of religious belief, such as primary religious [worship],
is at issue.”
Zelman v.
Simmons-Harris, 536
U. S. 639 –723 (2002) (Breyer, J., dissenting).
III
Even assuming the absence of an Establishment
Clause violation and proceeding on the Court’s preferred front—the
Free Exercise Clause—the Court errs. It claims that the government
may not draw lines based on an entity’s religious “status.” But we
have repeatedly said that it can. When confronted with government
action that draws such a line, we have carefully considered whether
the interests embodied in the Religion Clauses justify that line.
The question here is thus whether those interests support the line
drawn in Missouri’s Article I, §7, separating the State’s treasury
from those of houses of worship. They unquestionably do.
A
The Establishment Clause prohibits laws
“respecting an establishment of religion” and the Free Exercise
Clause prohibits laws “prohibiting the free exercise thereof.”
U. S. Const., Amdt. 1. “[I]f expanded to a logical extreme,”
these prohibitions “would tend to clash with the other.”
Walz, 397 U. S., at 668–669. Even in the absence of a
violation of one of the Religion Clauses, the interaction of
government and religion can raise concerns that sound in both
Clauses. For that reason, the government may sometimes act to
accommodate those concerns, even when not required to do so by the
Free Exercise Clause, without violating the Establishment Clause.
And the government may sometimes act to accommodate those concerns,
even when not required to do so by the Establishment Clause,
without violating the Free Exercise Clause. “[T]here is room for
play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.”
Id., at 669. This space between the two
Clauses gives government some room to recognize the unique status
of religious entities and to single them out on that basis for
exclusion from otherwise generally applicable laws.
Invoking this principle, this Court has held
that the government may sometimes relieve religious entities from
the requirements of government programs. A State need not, for
example, require nonprofit houses of worship to pay property taxes.
It may instead “spar[e] the exercise of religion from the burden of
property taxation levied on private profit institutions” and spare
the government “the direct confrontations and conflicts that follow
in the train of those legal processes” associated with taxation.
See
id., at 673–674. Nor must a State require nonprofit
religious entities to abstain from making employment decisions on
the basis of religion. It may instead avoid imposing on these
institutions a “[f]ear of potential liability [that] might affect
the way” it “carried out what it understood to be its religious
mission” and on the government the sensitive task of policing
compliance.
Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v.
Amos, 483 U. S. 327,
336 (1987) ; see also
id., at 343 (Brennan, J., concurring
in judgment). But the government may not invoke the space between
the Religion Clauses in a manner that “devolve[s] into an unlawful
fostering of religion.”
Cutter v.
Wilkinson, 544
U. S. 709, 714 (2005) (internal quotation marks omitted).
Invoking this same principle, this Court has
held that the government may sometimes close off certain government
aid programs to religious entities. The State need not, for
example, fund the training of a religious group’s leaders, those
“who will preach their beliefs, teach their faith, and carry out
their mission,”
Hosanna-Tabor, 565 U. S., at 196. It
may instead avoid the historic “antiestablishment interests” raised
by the use of “taxpayer funds to support church leaders.”
Locke v.
Davey, 540 U. S. 712, 722 (2004) .
When reviewing a law that, like this one,
singles out religious entities for exclusion from its reach, we
thus have not myopically focused on the fact that a law singles out
religious entities, but on the reasons that it does so.
B
Missouri has decided that the unique status of
houses of worship requires a special rule when it comes to public
funds. Its Constitution reflects that choice and 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.” Art. I, §7.
Missouri’s decision, which has deep roots in our
Nation’s history, reflects a reasonable and constitutional
judgment.
1
This Court has consistently looked to history
for guidance when applying the Constitution’s Religion Clauses.
Those Clauses guard against a return to the past, and so that past
properly informs their meaning. See,
e.g., Everson, 330
U. S., at 14–15;
Torcaso v.
Watkins, 367
U. S. 488, 492 (1961) . This case is no different.
This Nation’s early experience with, and
eventual rejection of, established religion—shorthand for
“sponsorship, financial support, and active involvement of the
sovereign in religious activity,”
Walz, 397 U. S., at
668—defies easy summary. No two States’ experiences were the same.
In some a religious establishment never took hold. See T. Curry,
The First Freedoms 19, 72–74, 76–77, 159–160 (1986) (Curry). In
others establishment varied in terms of the sect (or sects)
supported, the nature and extent of that support, and the
uniformity of that support across the State. Where establishment
did take hold, it lost its grip at different times and at different
speeds. See T. Cobb, The Rise of Religious Liberty in America
510–511 (1970 ed.) (Cobb).
Despite this rich diversity of experience, the
story relevant here is one of consistency. The use of public funds
to support core religious institutions can safely be described as a
hallmark of the States’ early experiences with religious
establishment. Every state establishment saw laws passed to raise
public funds and direct them toward houses of worship and
ministers. And as the States all dises-tablished, one by one, they
all undid those laws.[
5]
Those who fought to end the public funding of
religion based their opposition on a powerful set of arguments, all
stemming from the basic premise that the practice harmed both civil
government and religion. The civil government, they maintained,
could claim no authority over religious belief. For them, support
for religion compelled by the State marked an overstep of authority
that would only lead to more. Equally troubling, it risked
divisiveness by giving religions reason to compete for the State’s
beneficence. Faith, they believed, was a personal matter, entirely
between an individual and his god. Religion was best served when
sects reached out on the basis of their tenets alone, unsullied by
outside forces, allowing adherents to come to their faith
voluntarily. Over and over, these arguments gained acceptance and
led to the end of state laws exacting payment for the support of
religion.
Take Virginia. After the Revolution, Virginia
debated and rejected a general religious assessment. The proposed
bill would have allowed taxpayers to direct payments to a Christian
church of their choice to support a minister, exempted “Quakers and
Menonists,” and sent undirected assessments to the public treasury
for “seminaries of learning.” A Bill Establishing a Provision for
Teachers of the Christian Religion, reprinted in
Everson,
330 U. S., at 74 (supplemental appendix to dissent of
Rutledge, J.).
In opposing this proposal, James Madison
authored his famous Memorial and Remonstrance, in which he
condemned the bill as hostile to religious freedom. Memorial and
Remonstrance Against Religious Assessments (1785), in 5 The
Founders’ Constitution 82–84 (P. Kurland & R. Lerner eds.
1987). Believing it “proper to take alarm,” despite the bill’s
limits, he protested “that the same authority which can force a
citizen to contribute three pence only of his property for the
support of any one establishment, may force him to conform to any
other establishment.”
Id., at 82
. Religion had
“flourished, not only without the support of human laws, but in
spite of every opposition from them.”
Id., at 83
.
Compelled support for religion, he argued, would only weaken
believers’ “confidence in its innate excellence,” strengthen
others’ “suspicion that its friends are too conscious of its
fallacies to trust in its own merits,” and harm the “purity and
efficacy” of the supported religion.
Ibid. He ended by
deeming the bill incompatible with Virginia’s guarantee of
“ ‘free exercise of . . . Religion according to the
dictates of conscience.’ ”
Id., at 84
.
Madison contributed one influential voice to a
larger chorus of petitions opposed to the bill. Others included
“the religious bodies of Baptists, Presbyterians, and Quakers.” T.
Buckley, Church and State in Revolutionary Virginia 1776–1787, p.
148 (1977). Their petitions raised similar points. See
id.,
at 137–140, 148–149. Like Madison, many viewed the bill as a step
toward a dangerous church-state relationship. See
id., at
151. These voices against the bill won out, and Virginia soon
prohibited religious assessments. See Virginia Act for Establishing
Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution
84–85.
This same debate played out in nearby Maryland,
with the same result. In 1784, an assessment bill was proposed that
would have allowed taxpayers to direct payments to ministers (of
sufficiently large churches) or to the poor. Non-Christians were
exempt. See Curry 155. Controversy over the bill “eclipse[d] in
volume of writing and bitter-ness of invective every other
political dispute since the debate over the question of
independence.” J. Rainbolt, The Struggle To Define “Religious
Liberty” in Maryland, 1776–85, 17 J. Church & State 443, 449
(1975). Critics of the bill raised the same themes as those in
Virginia: that religion “needs not the power of rules to establish,
but only to protect it”; that financial support of religion leads
toward an establishment; and that laws for such support are
“oppressive.” Curry 156, 157 (internal quotation marks omitted);
see also Copy of Petition [to General Assembly], Maryland Gazette,
Mar. 25, 1785, pp. 1, 2, col.1 (“[W]hy should such as do not
desire or make conscience of it, be forced by law”). When the
legislature next met, most representatives “had been elected by
anti-assessment voters,” and the bill failed. Curry 157. In 1810,
Maryland revoked the authority to levy religious assessments. See
Md. Const., Amdt. XIII (1776), in 3 Federal and State Constitutions
1705 (F. Thorpe ed. 1909) (Thorpe).
In New England, which took longer to reach this
conclusion, Vermont went first. Its religious assessment laws were
accommodating. A person who was not a member of his town’s church
was, upon securing a certificate to that effect, exempt. See L.
Levy, The Establishment Clause 50 (1994) (Levy). Even so, the laws
were viewed by many as violating Vermont’s constitutional
prohibition against involuntary support of religion and guarantee
of freedom of conscience. See,
e.g., Address of Council of
Censors to the People of Vermont 5–8 (1800) (“[R]eligion is a
concern personally and exclusively operative between the individual
and his God”); Address of Council of Censors [Vermont] 3–7 (Dec.
1806) (the laws’ “evils” included “violence done to the feelings of
men” and “their property,” “animosities,” and “the dangerous
lengths of which it is a foundation for us to go, in both civil and
religious usurpation”). In 1807, Vermont “repealed all laws
concerning taxation for religion.” Levy 51.
The rest of New England heard the same arguments
and reached the same conclusion. John Leland’s sustained criticism
of religious assessments over 20 years helped end the practice in
Connecticut. See,
e.g., Esbeck, Dissent and
Disestablishment: The Church-State Settlement in the Early American
Republic, 2004 B. Y. U. L. Rev. 1385, 1498, 1501–1511. The
reasons he offered in urging opposition to the State’s laws will by
now be familiar. Religion “is a matter between God and
individuals,” which does not need, and would only be harmed by,
government support. J. Leland, The Rights of Conscience Inalienable
(1791), in The Sacred Rights of Conscience 337–339 (D. Dreisbach
& M. Hall eds. 2009). “[T]ruth gains honor; and men more firmly
believe it,” when religion is subjected to the “cool investigation
and fair argument” that freedom of conscience produces.
Id.,
at 340. Religious assessments violated that freedom, he argued. See
id., at 342 (“If these people bind nobody but themselves,
who is injured by their religious opinions? But if they bind an
individual besides themselves, the bond is fraudulent and ought to
be declared illegal”). Connecticut ended religious assessments
first by statute in 1817, then by its State Constitution of 1818.
See Cobb 513.
In New Hampshire, a steady campaign against
religious assessments led to a bill that was subjected to “the
scru-tiny of the people.” C. Kinney, Church & State: The
Strug-gle for Separation in New Hampshire, 1630–1900, p. 101 (1955)
(Kinney). It was nicknamed “Dr. Whipple’s Act” after its strongest
advocate in the State House.
Orford Union Congregational
Soc. v.
West Congregational Soc. of Orford, 55 N. H.
463, 468–469, n. (1875). He defended the bill as a means “to take
religion out of politics, to eliminate state support, to insure
opportunity to worship with true freedom of conscience, [and] to
put all sects and denominations of Christians upon a level.” Kinney
103. The bill became law and provided “that no person shall be
compelled to join or support, or be classed with, or associated to
any congregation, church or religious society without his express
consent first had and obtained.” Act [of July 1, 1819] Regulating
Towns and Choice of Town Officers §3, in 1 Laws of the State of New
Hampshire Enacted Since June 1, 1815, p. 45 (1824). Massachusetts
held on the longest of all the States, finally ending religious
assessments in 1833. See Cobb 515.[
6]
The course of this history shows that those who
lived under the laws and practices that formed religious
establishments made a considered decision that civil government
should not fund ministers and their houses of worship. To us, their
debates may seem abstract and this history remote. That is only
because we live in a society that has long benefited from decisions
made in response to these now centuries-old arguments, a society
that those not so fortunate fought hard to build.
2
In
Locke, this Court expressed an
understanding of, and respect for, this history.
Locke
involved a provision of the State of Washington’s Constitution
that, like Missouri’s nearly identical Article I, §7, barred the
use of public funds for houses of worship or ministers. Consistent
with this denial of funds to ministers, the State’s college
scholarship program did not allow funds to be used for devotional
theology degrees. When asked whether this violated the would-be
minister’s free exercise rights, the Court invoked the play in the
joints principle and answered no. The Establishment Clause did not
require the prohibition because “the link between government funds
and religious training [was] broken by the independent and private
choice of [scholarship] recipients.” 540 U. S., at 719; see
also
supra, n. 2. Nonetheless, the denial did not violate
the Free Exercise Clause because a “historic and substantial state
interest” supported the constitutional provision. 540 U. S.,
at 725. The Court could “think of few areas in which a State’s
antiestablishment interests come more into play” than the
“procuring [of] taxpayer funds to support church leaders.”
Id., at 722.
The same is true of this case, about directing
taxpayer funds to houses of worship, see
supra, at 2. Like
the use of public dollars for ministers at issue in
Locke,
turning over public funds to houses of worship implicates serious
antiestablishment and free exercise interests. The history just
discussed fully supports this conclusion. As states disestablished,
they repealed laws allowing taxation to support religion because
the practice threatened other forms of government support for,
involved some government control over, and weakened supporters’
control of religion. Common sense also supports this conclusion.
Recall that a state may not fund religious activities without
violating the Establishment Clause. See Part II–A,
supra. A
state can reasonably use status as a “house of worship” as a
stand-in for “religious activities.” Inside a house of worship,
dividing the religious from the secular would require intrusive
line-drawing by government, and monitoring those lines would
entangle government with the house of worship’s activities. And so
while not every activity a house of worship undertakes will be
inseparably linked to religious activity, “the likelihood that many
are makes a categorical rule a suitable means to avoid chilling the
exercise of religion.”
Amos, 483 U. S., at 345
(Brennan, J., concurring in judgment). Finally, and of course, such
funding implicates the free exercise rights of taxpayers by denying
them the chance to decide for themselves whether and how to fund
religion. If there is any “ ‘room for play in the joints’
between” the Religion Clauses, it is here.
Locke, 540
U. S., at 718 (quoting
Walz, 397 U. S., at
669).
As was true in
Locke, a prophylactic rule
against the use of public funds for houses of worship is a
permissible accommodation of these weighty interests. The rule has
a historical pedigree identical to that of the provision in
Locke. Almost all of the States that ratified the Religion
Clauses operated under this rule. See 540 U. S., at 723. Seven
had placed this rule in their State Constitutions.[
7] Three enforced it by statute or in
practice.[
8] Only one had not
yet embraced the rule.[
9]
Today, thirty-eight States have a counterpart to Missouri’s Article
I, §7.[
10] The provisions,
as a general matter, date back to or before these States’ original
Constitutions.[
11] That so
many States have for so long drawn a line that prohibits public
funding for houses of worship, based on principles rooted in this
Nation’s understanding of how best to foster religious liberty,
supports the conclusion that public funding of houses of worship
“is of a different ilk.”
Locke, 540 U. S., at 723.
And as in
Locke, Missouri’s Article I,
§7, is closely tied to the state interests it protects. See
Locke, 540 U. S., at 724 (describing the program at
issue as “go[ing] a long way toward including religion in its
benefits”). A straightforward reading of Article I, §7, prohibits
funding only for “any church, sect, or denomination of religion, or
in aid of any priest, preacher, minister or teacher thereof, as
such.” The Missouri courts have not read the State’s Constitution
to reach more broadly, to prohibit funding for other religiously
affiliated institutions, or more broadly still, to prohibit the
funding of religious believers. See,
e.g., Saint Louis Univ.
v.
Masonic Temple Assn. of St. Louis, 220 S. W. 3d 721,
726 (Mo. 2007) (“The university is not a religious institution
simply because it is affiliated with the Jesuits or the Roman
Catholic Church”). The Scrap Tire Program at issue here proves the
point. Missouri will fund a religious organization not “owned or
controlled by a church,” if its “mission and activities are secular
(separate from religion, not spiritual in) nature” and the funds
“will be used for secular (separate from religion; not spiritual)
purposes rather than for sectarian (denominational, devoted to a
sect) purposes.” App. to Brief for Petitioner 3a; see also Tr. of
Oral Arg. 33–35. Article I, §7, thus stops Missouri only from
funding specific entities, ones that set and enforce religious
doctrine for their adherents. These are the entities that most
acutely raise the establishment and free exercise concerns that
arise when public funds flow to religion.
Missouri has recognized the simple truth that,
even absent an Establishment Clause violation, the transfer of
public funds to houses of worship raises concerns that sit exactly
between the Religion Clauses. To avoid those concerns, and only
those concerns, it has prohibited such funding. In doing so, it
made the same choice made by the earliest States centuries ago and
many other States in the years since. The Constitution permits this
choice.
3
In the Court’s view, none of this matters. It
focuses on one aspect of Missouri’s Article I, §7, to the exclusion
of all else: that it denies funding to a house of worship, here the
Church, “simply because of what it [i]s—a church.”
Ante, at
12. The Court describes this as a constitutionally impermissible
line based on religious “status” that requires strict scrutiny. Its
rule is out of step with our precedents in this area, and wrong on
its own terms.
The Constitution creates specific rules that
control how the government may interact with religious entities.
And so of course a government may act based on a religious entity’s
“status” as such. It is that very status that implicates the
interests protected by the Religion Clauses. Sometimes a religious
entity’s unique status requires the government to act. See
Hosanna-Tabor, 565 U. S., at 188–190. Other times, it
merely permits the government to act. See Part III–A,
supra.
In all cases, the dispositive issue is not whether religious
“status” matters—it does, or the Religion Clauses would not be at
issue—but whether the government must, or may, act on that
basis.
Start where the Court stays silent. Its opinion
does not acknowledge that our precedents have expressly approved of
a government’s choice to draw lines based on an entity’s religious
status. See
Amos, 483 U. S., at 339;
Walz, 397
U. S., at 680;
Locke, 540 U. S., at 721. Those
cases did not deploy strict scrutiny to create a presumption of
unconstitutionality, as the Court does today. Instead, they asked
whether the government had offered a strong enough reason to
justify drawing a line based on that status. See
Amos, 483
U. S., at 339 (“[W]e see no justification for applying strict
scrutiny”);
Walz, 397 U. S., at 679 (rejecting
criticisms of a case-by-case approach as giving “too little weight
to the fact that it is an essential part of adjudication to draw
distinctions, including fine ones, in the process of interpreting
the Constitution”);
Locke, 540 U. S., at 725 (balancing
the State’s interests against the aspiring minister’s).
The Court takes two steps to avoid these
precedents. First, it recasts
Locke as a case about a
restriction that prohibited the would-be minister from “us[ing] the
funds to prepare for the ministry.”
Ante, at 12. A faithful
reading of
Locke gives it a broader reach.
Locke
stands for the reasonable proposition that the government may, but
need not, choose not to fund certain religious entities (there,
ministers) where doing so raises “historic and substantial”
establishment and free exercise concerns. 540 U. S., at 725.
Second, it suggests that this case is different because it involves
“discrimination” in the form of the denial of access to a possible
benefit.
Ante, at 11. But in this area of law, a decision to
treat entities differently based on distinctions that the Religion
Clauses make relevant does not amount to discrimination.[
12] To understand why, keep in mind
that “the Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embraces the
right to select any religious faith or none at all.”
Wallace
v.
Jaffree, 472 U. S. 38 –53 (1985). If the denial of a
benefit others may receive is discrimination that violates the Free
Exercise Clause, then the accommodations of religious entities we
have approved would violate the free exercise rights of
nonreligious entities. We have, with good reason, rejected that
idea, see,
e.g., Amos, 483 U. S., at 338–339, and
instead focused on whether the government has provided a good
enough reason, based in the values the Religion Clauses protect,
for its decision.[
13]
The Court offers no real reason for rejecting
the balancing approach in our precedents in favor of strict
scrutiny, beyond its references to discrimination. The Court’s
desire to avoid what it views as discrimination is understand-able.
But in this context, the description is particularly inappropriate.
A State’s decision not to fund houses of worship does not disfavor
religion; rather, it represents a valid choice to remain secular in
the face of serious establishment and free exercise concerns. That
does not make the State “atheistic or antireligious.”
County of
Allegheny v.
American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 610 (1989) . It means
only that the State has “establishe[d] neither atheism nor religion
as its official creed.”
Ibid. The Court’s conclusion “that
the only alternative to governmental support of religion is
governmental hostility to it represents a giant step backward in
our Religion Clause jurisprudence.”
Id., at 652, n. 11
(Stevens, J., concurring in part and dissenting in part).
At bottom, the Court creates the following rule
today: The government may draw lines on the basis of religious
status to grant a benefit to religious persons or entities but it
may not draw lines on that basis when doing so would further the
interests the Religion Clauses protect in other ways. Nothing
supports this lopsided outcome. Not the Religion Clauses, as they
protect establishment and free exercise interests in the same
constitutional breath, neither privileged over the other. Not
precedent, since we have repeatedly explained that the Clauses
protect not religion but “the individual’s freedom of conscience,”
Jaffree, 472 U. S., at 50—that which allows him to
choose religion, reject it, or remain undecided. And not reason,
because as this case shows, the same interests served by lifting
government-imposed burdens on certain religious entities may
sometimes be equally served by denying government-provided benefits
to certain religious entities. Cf.
Walz, 397 U. S., at
674 (entanglement);
Amos, 483 U. S., at 336 (influence
on religious activities).
Justice Breyer’s concurrence offers a narrower
rule that would limit the effects of today’s decision, but that
rule does not resolve this case. Justice Breyer, like the Court,
thinks 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 only by a state interest
of the highest order,”
ante, at 6 (majority opinion)
(internal quotation marks omitted). See
ante, at 1–2
(Breyer, J., concurring in judgment). Few would disagree with a
literal interpretation of this statement. To fence out religious
persons or entities from a truly gener-ally available public
benefit—one provided to all, no questions asked, such as police or
fire protections—would violate the Free Exercise Clause. Accord,
Rosenberger, 515 U. S., at 879, n. 5 (Souter, J.,
dissenting). This explains why Missouri does not apply its
constitutional provision in that manner. See Tr. of Oral Arg.
35–36. Nor has it done so here. The Scrap Tire Program offers not a
generally available benefit but a selective benefit for a few
recipients each year. In this context, the comparison to truly
generally available benefits is inapt. Cf.
Everson, 330
U. S., at 61, n. 56 (Rutledge, J., dissenting) (The Religion
Clauses “forbi[d] support, not protection from interference or
destruction”).
On top of all of this, the Court’s application
of its new rule here is mistaken. In concluding that Missouri’s
Article I, §7, cannot withstand strict scrutiny, the Court
describes Missouri’s interest as a mere “policy preference for
skating as far as possible from religious establishment concerns.”
Ante, at 14. The constitutional provisions of thirty-nine
States—all but invalidated today—the weighty interests they
protect, and the history they draw on deserve more than this
judicial brush aside.[
14]
Today’s decision discounts centuries of history
and jeopardizes the government’s ability to remain secular. Just
three years ago, this Court claimed to understand that, in this
area of law, to “sweep away what has so long been settled would
create new controversy and begin anew the very divisions along
religious lines that the Establishment Clause seeks to prevent.”
Town of Greece v.
Galloway, 572 U. S. ___, ___
(2014) (slip op., at 8). It makes clear today that this principle
applies only when preference suits.
IV
The Religion Clauses of the First Amendment
contain a promise from our government and a backstop that disables
our government from breaking it. The Free Exercise Clause extends
the promise. We each retain our inalien-able right to “the free
exercise” of religion, to choose for ourselves whether to believe
and how to worship. And the Establishment Clause erects the
backstop. Government cannot, through the enactment of a “law
respecting an establishment of religion,” start us down the path to
the past, when this right was routinely abridged.
The Court today dismantles a core protection for
religious freedom provided in these Clauses. It holds not just that
a government may support houses of worship with taxpayer funds, but
that—at least in this case and perhaps in others, see
ante
at 14, n. 3—it must do so when-ever it decides to create a funding
program. History shows that the Religion Clauses separate the
public treasury from religious coffers as one measure to secure the
kind of freedom of conscience that benefits both religion and
government. If this separation means anything, it means that the
government cannot, or at the very least need not, tax its citizens
and turn that money over to houses of worship. The Court today
blinds itself to the outcome this history requires and leads us
instead to a place where separation of church and state is a
constitutional slogan, not a constitutional commitment. I
dissent.