State funding of private schools

The Supreme Court recently decided a significant case addressing the separation of church and state. This case did not receive a lot of media attention, but is important for a couple of reasons. First, the case gives some indication of the current direction of Supreme Court jurisprudence related to church and state issues. Secondly, the case involved issues of separation of church and state in the context of a private school, and therefore has ramifications for our covenant schools as well as for our churches.

The case is Trinity Lutheran Church of Columbia, Inc., v. Comer,1 and began when the church applied for a grant offered by the state. The Missouri Department of Natural Resources was offering grant funds so that organizations could purchase recycled tires to resurface playgrounds. The resurfacing was done in part as a safety measure to provide a more cushioned playing surface for children. The Trinity Lutheran Church operated a daycare and preschool that had been a separate non-profit organization, but had been reorganized as a part of the church’s legal organization. The school completed an application for the grant program for its playground.

Grant applications are typically “scored” to see which applicant’s projects are most in line with the stated purpose of the grant. Although the school’s grant application scored well, ranking 5th out of 44 applicants, the school was denied funding because of its affiliation with the church. The reason for the denial was that the Missouri Constitution 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.”2 Like the Establishment Clause of the First Amendment to the United States Constitution, this language is intended to prevent the establishment of state religions. This language is also similar to language in the constitutions of approximately three dozen other states, which means that the ruling in this case had implications for the law of many other states as well.

The church filed an action challenging the denial as improperly discriminating against the church because of the church’s religion. The church argued that this was a violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution, as well as a violation of the Equal Protection Clause of the Fourteenth Amendment. The Free Exercise Clause counters the Establishment Clause by providing that while the government cannot establish state churches, it also cannot restrict the Free Exercise of religion. The Equal Protection clause is designed to prohibit a state government from denying any person within its jurisdiction “the equal protection of the laws.”

The federal district court denied the claim, citing as precedent a 2004 case, Locke v. Davey,3 where applicants were denied an educational scholarship that was to be used to pursue a devotional theology degree. The Eighth Circuit Court of Appeals affirmed the district court, stating that even though the grant to the school would be permissible under the federal Constitution, it would be in violation of the more restrictive language of the Missouri state constitution anti-establishment clause, as quoted above.

The Supreme Court reversed the lower courts, finding that the state’s action violated the Free Exercise Clause of the First Amendment, stating that it denied “the Church an otherwise public benefit on account of its religious status.” The Court distinguished the Locke case because the plaintiff in the Locke case was denied state funds because he intended to use them to pursue a religious purpose—a theology degree. The Court noted that this case was different in that the purpose—playground resurfacing—was neutral, but that the church was being discriminated against solely because it was a church. Because the Court found a violation of the Free Exercise Clause, it did not address the Equal Protection Clause argument.

The fact that the Court’s decision was divided with seven justices siding with the church and only two against gives some indication of the current direction of the court. The court has been divided in recent years into a conservative wing consisting of Justices Scalia, Thomas, Roberts, and Alito, and a liberal wing, consisting of Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justice Anthony Kennedy has often been the deciding vote on many cases, siding with the liberal wing at times and with the conservative wing at others. After Justice Antonin Scalia passed away suddenly, Justice Neil Gorsuch was appointed by President Trump and it was anticipated that his jurisprudence would align closely with that of former Justice Scalia.

In this case, Justices Roberts, Kennedy, Alito, Kagan, Thomas, and Gorsuch concurred in the majority opinion, with Justice Breyer concurring in the judgment alone. Justices Ginsburg and Sotomayor dissented, stating that the decision weakened the longstanding commitment to separation of church and state. Justices Thomas and Gorsuch filed concurring opinions in which they expressed disagreement with the Court’s narrowly tailored ruling. Both expressed that they felt that the Locke case was being interpreted to allow “mild” religious discrimination. Justice Gorsuch, in particular, emphasized the importance of Free Exercise of religion. He took issue with the Court’s distinction based on the “purpose” to which government funds were used. With regard to the Locke case, he stated that it did not make a difference whether the funding recipient was a religious man studying for a vocation, or a man studying for a religious vocation—either way the freedom of religion should be protected.

The Court’s emphasis on the Free Exercise Clause is somewhat encouraging. Under the legal protection of the Free Exercise Clause, the church in this country has enjoyed the ability to proclaim the truth, to educate her children in the light of that truth, and to further develop and expound on the doctrines of that truth. We know that someday the witness of the church to that truth will be silenced by the world, but we still seek to proclaim that truth for as long as possible. With that goal in mind, the Court’s emphasis on protecting the Free Exercise is encouraging.

The Trinity Lutheran case involved a school run directly by a church, but the same arguments can be applied to our own schools, which we establish so that our religious doctrines can be incorporated into all aspects of the teaching. We must take great care in emphasizing this aspect of our schools, because the law seems to recognize more easily churches and the organizations run directly by churches as “religious” institutions. The protection afforded under the federal Free Exercise clause should be claimed over against any state-law attempts to restrict our instruction of our children.

While the emphasis on Free Exercise is encouraging, there are aspects of the Trinity Lutheran decision that can also be seen as negative. The case involved state funding of private school operations. One danger in this is that private schools may rely more and more on state funding. Many advocates of “school choice” cheered the decision as being a step forward for private schools and homeschoolers. The concern with this is that with government funding comes government control, even if not directly. For instance, comparisons are often drawn between discrimination based on sexual orientation and discrimination based on race. The courts have previously decided that the government can withhold economic benefits from private schools that discriminate based on race.4 While the government cannot discriminate based only on religion, the courts could easily decide that the state has an overriding interest in preventing discrimination based on sexual orientation that trumps the Free Exercise, just as with discrimination based on race. The government could threaten to take away funding of any school that refuses to endorse sexual immorality in a “non-discrimination policy.” If private schools become dependent on government funding, it will be much harder for those schools to make a public stand for the truth.

The other concern with public funding to private schools is the specter of state-sponsored religion. As the minority in the Trinity Lutheran decision points out, the legal doctrine of separation of church and state has been long standing in our country. The reason for this separation was, in part, the experience of our forefathers with the state churches of Europe. In Revelation 17 we see the prophecy of the woman, representing the false church, riding on the back of the blasphemous beast, representing the anti-Christian world power. The idea of the false church working closely with the government is nothing new, and as the wall of separation between church and state falls, we can see how that coalition can rise in our own country. The idea of getting funds from the government to aid in education may sound appealing to parents paying taxes while struggling to pay tuition, but that combination rarely bodes well for the church.

In summary, the Court’s renewed focus on the Free Exercise Clause gives hope that the church’s ability to worship and proclaim the Word may continue for a time. However, we should also be careful that our churches and schools do not become reliant on the state. May the Lord graciously give us the discernment to navigate in a way that is honoring to Him.


1 Trinity Lutheran Church of Columbia, Inc., v. Comer, 582 U.S. ____ (2017).

2 Missouri Constitution, Article I, Section 7.

3 Locke v. Davey, 540 U.S. 712 (2004).

4 Bob Jones University v. United States, 461 U.S. 574 (1983).