With Trump’s nominee confirmed, the Supreme Court wades into the religion wars

A battle over chopped up tires is now a battle over God.

CREDIT: Franz Jantzen/Public Information Office Supreme Court of the U.S. via AP
CREDIT: Franz Jantzen/Public Information Office Supreme Court of the U.S. via AP

Trinity Lutheran Church of Columbia, Inc. v. Comer is an odd case. It is a case about discarded tires that is widely viewed as a stalking horse for school vouchers. Yet it also involves a bizarrely broad provision of the Missouri state constitution which, if read literally, would lead to absurd consequences for churches and other religious organizations.

It’s also not an especially suspense-filled case. Trinity Lutheran was one of the last cases the Court agreed to hear before Justice Antonin Scalia’s death in February of 2016. The Court waited to schedule oral arguments in this case until after Donald Trump’s nominee was likely to be confirmed to fill Scalia’s seat. That’s a strong sign that the justices believed they would split 4–4 if they heard the case without a ninth member.

Now that Neil Gorsuch occupies the seat that once belonged to Justice Scalia, there’s very little doubt that the Court’s conservative bloc is going to prevail in this case. Gorsuch’s own record in religion cases suggests that he is a reliable conservative.

More than just tires

As mentioned above, Trinity Lutheran is ostensibly a case about old tires. The Missouri Department of Natural Resources offers grants to non-profits that wish to purchase used tires to make a soft surface for children to play on. The church at the center of this case applied for such a grant to resurface the playground at its Learning Center, but was denied the grant due to a state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”


This is unusually broad constitutional language that, read literally, seems to suggest that Missouri could not provide any government services of any kind to benefit a church. After all, if a place of worship catches on fire, and state-funded firefighters extinguish those flames, that would be a form of direct or indirect aid to a religious denomination.

In fairness, there’s no indication that Missouri has ever denied fire services to a burning church. But the Trinity Lutheran case nonetheless offers an ideal vehicle for conservative lawyers to ask a conservative Supreme Court to endorse an expansive reading of the Constitution’s protections for churches. And so the church in this case is represented by the Alliance Defending Freedom (ADF), one the nation’s largest religious rights law firms.

The primary goal of ADF’s brief appears to be convincing the justices that the government may not treat “similarly situated entities differently solely because of their religious status,” barring extraordinary circumstances. They want to establish a rule preventing religious organizations from being treated differently than non-religious institutions.

Under existing law, that’s a heavier lift than it initially may seem. It is well-established that the government generally cannot discriminate against a particular religious sect — that is, Missouri could not deny the old tires to Lutherans but provide them to Baptists or Muslims or Buddhists. Yet it is far less clear that a state cannot draw a line between groups that espouse any religious belief and groups that espouse no religious brief, especially when it does so to maintain separation of church and state.


As Missouri points out in its own brief, none of the cases ADF cites in the relevant part of its brief involve “a law differentiating between ‘all religious groups’ and ‘non-religious groups.’”

But let’s be real here. The justices almost certainly delayed hearing this case for as long as they did because there were exactly four votes for each position. Gorsuch is overwhelmingly likely to side with the church. Barring unlikely developments, the state of Missouri is going to lose this case.

So what then should the four liberal justices, who are unlikely to be happy with the Court’s resolution of this case, do from here?

The voucher wars

Organizations on both sides of the case view Trinity Lutheran’s quest for some used tires as a fight over the future of school vouchers. An amicus brief joined by Christian Schools International laments that a decision against the church in this case could lead to religious schools being excluded from voucher programs. On the other side of the case, the National Education Association warns that a decision in favor of the church “could open the door to significantly expanded state school voucher programs including ones that fund pervasively sectarian schools.”

These concerns are probably overblown — not because the threat of vouchers isn’t real, but because existing precedent is already so favorable to school voucher programs there isn’t much room to make it more so. In Zelman v. Simmons-Harris, the Supreme Court upheld an Ohio voucher program even though 96 percent of the students who used those vouchers enrolled in “religiously affiliated schools.”


A victory for the church in Trinity Lutheran would potentially prevent states from creating school voucher programs that only allow students to enroll in non-religious schools, but it is unclear whether such programs even exist. The sort of politicians who favor school vouchers tend to also be the sort of politicians who want to lower the wall of separation between church and state.

Yet, while the ship may have sailed on lawsuits challenging voucher programs that fund religious education, Trinity Lutheran does potentially threaten other important safeguards which ensure that the line between religious institutions and the government is not wiped away.

Zelman, for example, draws a “distinction between government programs that provide aid directly to religious schools, and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” That is, the government can make a voucher available generally and let families choose how to use it, but it may not be able to create a program that funds religious education regardless of families’ preferences.

Additionally, as the LGBT rights group Lambda Legal notes in its own amicus brief, government aid to a religious organization could potentially be used “to advance religion or to discriminate.” States should remain free, for example, to deny government aid of any kind to organizations that discriminate on the basis of race, sex, sexual orientation, or gender identity.

The Court’s liberal bloc is unlikely to find a fifth vote willing to side with Missouri, but it could potentially help move the Court towards a more moderate opinion that, among other things, makes it clear that religious liberty is not a license to discriminate.