Last week, the U.S. Supreme Court granted a request to review a church’s claim that the state of Missouri violated the federal constitution by prohibiting religious groups from obtaining state funding because of their religious nature. The case involves Trinity Lutheran Church of Columbia, which runs a preschool and daycare in Missouri that is open to anyone regardless of religion, even though the church “teaches a Christian world view and incorporates daily religious instruction in its programs.” The church applied to the Missouri Department of Natural Resources (DNR) for state funding to purchase recycled tires to resurface its playground, but was denied because it is a religious organization. DNR noted in its denial that “Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.’”
The U.S. Court of Appeals for the Eighth Circuit rejected the church’s claims that by denying its application DNR violated the Free Exercise Clause by targeting religion for disparate treatment without a compelling government interest and violated the Establishment Clause because it required the government “to determine what is religious enough” to justify denial. The Court specifically relied on an earlier Supreme Court decision, Luetkemeyer v. Kaufman, which summarily affirmed the lower court’s decision holding that Missouri could enforces a more strict policy of separation between church and state than that required under the federal constitution. However, the Eighth Circuit teed up the issue to be considered by SCOTUS by noting Justice Scalia’s dissent in another Supreme Court case, Locke v. Davey:
When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds the benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.
The Eighth Circuit noted that it appears the position of Scalia’s dissent is “the direction the [Supreme] Court recently seems to be going.” But it noted that only the Supreme Court could make such a constitutional leap and go against its earlier decision in Luetkemeyer.
Why are we reporting on this case? After all, it has nothing to do with land use regulation.
The Supreme Court has never decided a religious land use case. The case Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah came close, but involved ordinances prohibiting animal sacrifice. Like it or not, Supreme Court decisions involving the First Amendment outside the land use context (Employment Division v. Smith; Wisconsin v. Yoder; Sherbert v. Verner, etc.) are cited by litigants and courts in RLUIPA and other religious land use cases. The Missouri case has the potential to follow in the footsteps of these other non-land use decisions that have come to affect land use decisions.
And, to the extent the Supreme Court addresses the Establishment Clause issue, this is a topic that local governments may want to watch closely. On the one hand, the Free Exercise Clause and RLUIPA require accommodation of religion in certain situations. Yet, the Establishment Clause cautions that religious uses cannot be treated better than secular uses. It will be interesting to see how the issue is decided and how, if at all, it might affect the regulation of religious uses.
The Eighth Circuit’s decision in Trinity Lutheran Church of Columbia, Inc. v. Pauley is available here. Trinity Lutheran Church of Columbia, Inc.’s petition for certiorari is available here.
