The church-state decision

U.S. Supreme Court’s Trinity Lutheran ruling could have a direct effect on New Hampshire


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Paving a small playground at a Lutheran church in Missouri with rubberized surface material, and a dispute surrounding it, may have changed constitutional law on church-state relations nationally, including New Hampshire. 

On June 26, the U.S. Supreme Court released its decision in Trinity Lutheran Church of Columbia Inc. v. Comer, Director, Missouri Department of Natural Resources.  This case involved the denial by the state of an application by a small Lutheran church to be awarded a grant to pay for the installation of a rubberized playground surface made from recycled tires. 

Notwithstanding the rather minor issue, the church sued the state claiming its rights had been violated when the agency denied its application for the discretionary program, based on a provision in the Missouri state constitution which reads: “… no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion ….”

This provision, similar to that in many states, including New Hampshire, is known as a “Blaine Amendment,” inserted into the state constitution in the 1800s as a result of a wave of anti-Catholic sentiment and the desire to keep parochial schools from being funded by the public. 

Chief Justice John Roberts, writing for the majority, relied on the “Free Exercise of Religion” clause of the First Amendment to the U.S. Constitution. He claimed that the decision to overturn the lower courts that had dismissed the case was the result of a long line of precedents and was not remarkable.

The Free Exercise Clause is one of two “religion clauses” in the First Amendment, the other one being the “Establishment Clause.” The amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”

Joined by Justices Kennedy, Alito and Kagan in the full opinion, the majority was also joined by Justices Thomas and Gorsuch in two concurring opinions. Justice Breyer filed a concurring opinion that did not adopt the rationale of the majority. Justices Sotomayor and Ginsburg dissented. 

The decision stated that denying the church’s application, which otherwise was rated ahead of other ones, because of its status as a church, hindered its “free exercise” of religion. The church operates its daycare center with the playground as part of its church activities and has religious education as part of the curriculum.

This, the court found, was unfair discrimination of the church compared with other not-for-profit applicants. Had the analysis been based on the establishment clause, the result apparently would have been different.

Justice Roberts noted that if the decision had gone the other way, “the consequence is, in all likelihood, a few extra scraped knees.” However, he concluded, “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our constitution all the same, and cannot stand.”

Justices Sotomayor and Ginsburg contended that this decision was a fundamental shift in the law. Tracing the history of the involvement of church and state in the colonies and early states, and then the history of the adoption of the Blaine Amendments in many states and the resulting jurisprudence that arose, the dissenters predicted the decision would eviscerate all of the constitutional prohibitions of giving state money to churches in all but name. 

The New Hampshire Constitution, Part One, Article Six, says, in part, “… no person shall ever be compelled to pay towards the support of the schools of any sect or denomination.” 

This provision has been cited repeatedly over the years by courts and legislators as prohibiting the use of state aid, whether directly or indirectly, to pay for the schools of churches and religious organizations.

In the present legislative session, Senate Bill 193, a school voucher bill, which allowed aid for individuals sending their children to private schools of any kind, was debated in the context of the constitutional provision and many predicted would be held to be unconstitutional. The bill passed the Senate but was retained in the House.

Now, with the Trinity Lutheran case, the issue will arise again, and that may well influence the bill’s fate going forward.

An indication of the effect of the decision came quickly when, the next day, the court returned school voucher and library book loans to parochial school cases to the lower courts which had decided them, with instructions to interpret them in light of the Trinity Lutheran decision.

Regardless of anyone’s position on the issues, this case could be a big deal.  

Brad Cook, a shareholder in the Manchester law firm of Sheehan Phinney Bass & Green, heads its government relations and estate planning groups.

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