Can government discriminate against a church, just because it is a church?

April 29, 2016 | By MERIEM L. HUBBARD

Does the exclusion of churches from an otherwise neutral and secular aid program violate the Free Exercise and Equal Protection Clauses of the U.S. Constitution? That is the question the Supreme Court will answer in the case of Trinity Lutheran Church of Columbia v. Pauley.

Trinity Lutheran Church operates a daycare which includes a playground used by both students and members of the surrounding community.  Trinity applied for a grant, offered to nonprofit organizations by the State of Missouri, which would allow it to replace the rock surface of the playground with a safer rubber surface made from recycled tires. Trinity’s application was denied.  Why?  Because it is a church.

The Missouri State Constitution, like a majority of state constitutions, does not allow public money to be spent “directly or indirectly, in aid of any church, sect or denomination of religion.”   The Supreme Court has held that the federal Constitution does not allow public money to be used for religious purposes, such as educating the clergy.  But it is not at all clear whether neutral and secular programs, such as the rubber surface grant program, must exclude churches.  That is what the Court will decide in this case.

PLF filed an amicus brief in support of Trinity Church, arguing that the exclusion of religious entities from neutral and secular programs amounts to unequal treatment under the Equal Protection Clause. Religious discrimination in the United States has long been intertwined with national origin and race.  Thus, the treatment of religious discrimination should be subject to the same standard of heightened scrutiny as that applied to racial discrimination.  Under this test, the State must prove more than the existence of a rational basis for denying Trinity’s application; it must prove that it acted to further a compelling state interest and that the denial was designed to further that interest.  PLF has advocated for this searching standard of review in many cases, including Fisher v. University of Texas at Austin (admissions preferences), and Dunnet Bay Construction Company v. Hannig (public contracting).

Trinity Lutheran likely will be heard by the Court in the Fall.