In the

Supreme Court of the United States








Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.


Missouri's Scrap Tire Grant Program provides reimbursement for rubber safety flooring for all playgrounds that meet certain neutral criteria­ except for playgrounds owned by churches and religious organizations. Trinity Lutheran Church was denied participation in this recycling and child safety program solely because of who it is-a church-even though the Missouri Department of Natural Resources ("DNR") ranked its application fifth out of forty-four submitted. In the name of the Missouri state constitution's antiestablishment principle, the DNR violates the United States Constitution's free exercise and equal protection guarantees. And it does so even though including religious entities in the program would equally further the state's goals of keeping tires out of Missouri's landfills and fostering children's safety. A rubber playground surface accomplishes the state's purposes whether it cushions the fall of the pious or the profane.

The DNR's categorical exclusion of religion in this case is unvarnished status-based discrimination that violates the Free Exercise and Equal Protection Clauses. A categorical ban on religion here is merely an overbroad and unconstitutional restriction on the faithful's ability to participate on equal terms in public life. This Court should protect the free exercise of religion in our Nation by rebuffing the DNR's gratuitous attempt to "impose special disabilities on the basis of religious status".


A. Statement of Facts

Trinity Lutheran Church operates a pre-school education and daycare center named The Learning Center. The Learning Center formerly operated as a separate entity but merged into the Church in 1985 and has operated as a Church ministry ever since.

Enrollment at The Learning Center averages ninety children ages two through five. The Learning Center is licensed by the State of Missouri.

The Learning Center has a playground for the children who attend. At any given play period, about thirty to forty children use the playground. Children from the surrounding community also use the playground after school hours and on weekends.

Children need a safe place to play. The existing playground surface of pea gravel and grass does not adequately protect the children from injury. The hard, jagged edges of the pea gravel are unforgiving and shift away from the play equipment thereby posing a safety risk to children.

In 2012, the Church learned about the State of Missouri Scrap Tire Grant Program, which provides reimbursement grants for nonprofit organizations to purchase rubber pour-in-place playground surfaces made from recycled tires. The state funds the program through a fee imposed on the sale of new tires. Anyone, including religious organizations and their members, who buys a new tire pays this fee. The state uses the program to reduce the number of used tires in landfills and illegal dump sites and to foster children's safety. The DNR administers the Scrap Tire Grant Program.

Desiring to enhance the safety and accessibility of The Learning Center's facilities, Trinity Lutheran submitted an application for a scrap tire grant to resurface its playground. The application is detailed and requires, among other things, a description, a plan, a budget for the project, a media plan for advertising the benefits of recycling, and an education plan to teach students the benefits of recycling.

The DNR ranks each application for the Scrap Tire Grant Program because it only awards a certain number of grants per year based on the amount of money it collects from the fee imposed on retail tire sales. The DNR criteria for ranking applications are entirely secular and neutral. They include, among other things, whether the application describes the project in adequate detail, includes quotes from at least three scrap tire vendors, and has a detailed plan for installation.

Trinity Lutheran submitted an application in 2012. The DNR received forty ­four applications that year. Using its neutral scoring criteria, the DNR ranked the Church's application fifth out of the forty-four applications submitted. The DNR awarded fourteen grants that year but denied Trinity a scrap tire grant solely because it is a church.  The DNR notified the Church by letter, which explained:

After further review of applicable constitutional limitations, the department is unable to provide this financial assistance directly to the church as contemplated by the grant application. Please note 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, sect, or denomination of religion .... "

B. Procedural Background

Trinity Lutheran filed a complaint in the U.S. District Court for the Western District of Missouri on January 25, 2013, alleging that the DNR's policy of denying scrap tire grants to churches violated the Free Exercise, Equal Protection, Free Speech, and Establishment Clauses of the First and Fourteenth Amendments to the United States Constitution, as well as the Missouri Constitution, Article I, 7. Trinity Lutheran's complaint was an as-applied challenge, focusing on the DNR policy's application to the church. Trinity Lutheran did not bring a facial challenge to the Missouri Constitution, Article I, 7.

The district court dismissed Trinity Lutheran's complaint. It rejected the church's free exercise claim, reasoning that the Scrap Tire Grant Program involved a direct payment of funds to a sectarian institution that raised "antiestablishment concerns that are at least as comparable to those relied on by the Court in Locke v. Davey. This Court held in Locke that the State of Washington could deny a scholarship to a student undergoing religious training to be a member of the clergy without violating the Free Exercise Clause. The district court cited Locke for the proposition that Trinity Lutheran's failure to state a violation of the Free Exercise Clause meant that its "Equal Protection claim must also be dismissed." The District Court also denied Trinity Lutheran's motion for leave to amend the complaint, ruling that, as a matter of law, any amendment would be futile.

Trinity Lutheran appealed to the Eighth Circuit, which affirmed the district court's dismissal of the church's Complaint. The Eighth Circuit panel majority held that the exclusion of religious organizations from the Scrap Tire Grant Program was justified under Locke because there was no "break in the link" between state funds and religion. The Eighth Circuit was concerned about "the direct grant of public funds to churches, another of the 'hallmarks of an 'established' religion,'" regardless of the secular use to which those funds are put. Like the district court, the Eighth Circuit panel majority cited Locke for the proposition that "the absence of a valid free exercise claim" required the dismissal of Trinity Lutheran's equal protection claim as well. Trinity Lutheran filed a motion for rehearing en banc that was denied.


The DNR's categorical exclusion of religious daycares and preschools from the Scrap Tire Grant Program is discrimination based on religious status that violates the Free Exercise and Equal Protection Clauses. It is not neutral nor is it generally applicable for the state to impose special burdens on non-profit organizations with a religious identity and doing so cannot survive strict scrutiny. Moreover, the Missouri state constitution's antiestablishment concerns cannot trump the United States Constitution's guarantees of free exercise of religion and equal protection to all citizens. Excluding Trinity Lutheran from the Scrap Tire Program here exhibits an undeniable hostility to religion that offends the Constitution's essential mandate of religious neutrality.

The Eighth Circuit strayed by forcing this case within the confines of Locke v. Davey. Trinity Lutheran sought to participate in a generally available public benefit program that provides recycled rubber flooring to protect children from cuts and bruises on the playground. Locke rejected a free exercise challenge to compel a state to fund the religious training of clergy. This case is as far from Locke as one can conceive.

The DNR's application of Missouri Constitution, Article I, 7, to categorically exclude religious organizations from the Scrap Tire Grant Program based solely on their religious status violates the Free Exercise Clause. The DNR's policy exhibits hostility to religion by singling out and excluding religious institutions solely because of who they are. Thus, it is neither neutral nor generally applicable.

It is well-established that the Free Exercise Clause prevents government from "imposing special disabilities on the basis of ... religious status." This Court has consistently invalidated exclusions based on religious status or identity. McDaniel v. Paty, for instance, invalidated a Tennessee statute that barred ministers of the Gospel and priests from serving as delegates to the state's constitutional convention. Tennessee justified the exclusion the same as Missouri does here as ensuring the "separation of church and state." In McDaniel, members of this Court agreed that the exclusion of clergy was unconstitutional religious status discrimination.

The law at issue in McDaniel interfered with free exercise because it conditioned a generally available public benefit, eligibility for office, on the forswearing of certain religious status. Justice Brennan concluded that such an "exclusion manifested patent hostility toward, not neutrality respecting, religion."

Similarly, in Torcaso v. Watkins, this Court invalidated a state requirement that a notary public must profess a belief in the existence of God to hold office. Such a requirement "setting up a religious test which ... barred every person who refuses to declare a belief in God from holding a public 'office of profit or trust' in Maryland." This Court explained that:

The requirement to profess a belief in God was discrimination based on religious status: those who believed in the existence of God could hold office while those who did not were prohibited. This Court invalidated this religious classification as an unconstitutional invasion of Torcaso's "freedom of belief and religion."

The DNR imposes a special disability on religious status by categorically excluding religious organizations from a program intended to provide recycled rubber playground flooring that protects children as they play. Just as states did in McDaniel and Torcaso, the DNR here excludes Trinity Lutheran solely because of who it is. This kind of status-based discrimination is particularly odious because it disadvantages an entire group of citizens based solely on their identity regardless of the merits, thereby penalizing their religious faith. Here, the DNR closes the door to all religious daycares even if their inclusion would not threaten any legitimate state antiestablishment interest and instead would further the purely secular objectives of the program. This highlights the discrimination and lack of neutrality perpetrated in this case.

In Grumet, this Court explained that "religious people (or groups of religious people) cannot be denied the opportunity to exercise the rights of citizens simply because of their religious affiliations or commitments, for such a disability would violate the right to religious free exercise." The Court has consequently rejected all government attempts "to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."

The DNR did not consider Trinity's application to receive a neutral benefit of citizenship on an evenhanded basis. It rejected Trinity's application outright-despite that request's undeniable secular merits-because of the daycare's religious identity. The Court does not have to look beyond the DNR's letter denying Trinity Lutheran's application to participate in the Scrap Tire Grant Program, regardless of its high score on the merits, to decide that the program is not being administered in a neutral manner. Quite to the contrary, the DNR applied an express categorical exclusion based solely on Trinity Lutheran's religious status.

Nor is the DNR's exclusion generally applicable. It applies only to religious institutions. Every secular daycare and other eligible nonprofit organization can participate in the program. The DNR's exclusion applies only to daycares and preschools owned and operated by a religious entity. It has no application to daycares motivated by any other philosophy, despite the fact that their programs may be functionally identical to those operated by a church.

In short, there is no plausible argument that the DNR's exclusion of Trinity Lutheran is neutral or generally applicable. Removing the barrier to the church's equal participation in the political community will not result in a constitutional anomaly It will simply reestablish the constitutional norm of equal treatment that the Free Exercise Clause guarantees to all citizens.

The DNR undeniably classifies applicants to the Scrap Tire Grant Program by religion. In fact, it explicitly rejected Trinity Lutheran's grant application solely because it is a "church." There is thus no question that DNR applies Article 1, 7, of the Missouri Constitution to categorically exclude all "churches, sects or denominations of religion" from the Scrap Tire Grant Program, a religious classification that is inherently suspect.

Under the Free Exercise Clause, the government must show that a law which is either not neutral or generally applicable is justified by a compelling governmental interest and is narrowly tailored to advance that interest. Likewise, a suspect classification under the Equal Protection Clause must satisfy strict scrutiny. The DNR's religious exclusion here fails both prongs of the strict scrutiny analysis, which together comprise "the most demanding test known to constitutional law." The DNR has no compelling interest in categorically excluding religious institutions from the Scrap Tire Grant Program.

This Court has already rejected the DNR's asserted categorical compelling interest. In Widmar v. Vincent, the University of Missouri at Kansas City opened its facilities for the activities of registered student groups but excluded one religious student group who wanted to use the facilities for "religious worship and religious discussion." This Court invalidated the state's religious exclusion under the Free Speech Clause, holding that the university had created an open forum for student groups and its "exclusionary policy violates the fundamental principle that a state regulation of speech should be content-neutral, and the university is unable to justify this violation under applicable constitutional standards."

All the DNR is really accomplishing by excluding religious institutions from a neutral benefit program available to all is treating religious entities worse than everyone else. The DNR's exclusion thus represents "a brooding and pervasive devotion to the secular and ... an active hostility to the religious," which is "prohibited by the Constitution." The DNR simply has no legitimate, let alone compelling, interest in excluding all religious organizations from participating in the Scrap Tire Grant Program.

Yet the DNR wields an axe when a scalpel would suffice. This is not a case in which the state allows money to flow to recipients to use as they wish with minimal oversight or restrictions. The DNR, for instance, utilizes strict record-keeping and reporting requirements. Grant payments are only reimbursements for payments already made by the recipient and they do not cover the total cost of the project. And the DNR specifies that "grant recipients will be reimbursed only after the playground scrap tire surface material is installed and verified by a department inspector and all required documentation is submitted and approved by the department project manager."

In sum, none of the factors this Court relied upon in Locke are present here. This case is different in all relevant respects. Unlike Locke, it involves: (1) a generally available public benefit that is completely secular and that does not involve an inherently religious activity, such as the training of clergy; (2) an unmistakable hostility to religion that is not a mild disfavor of religion; (3) a categorical exclusion of religion that bars religious organizations completely from the program; and (4) a constitutional provision, Article I, 7, that reflects bigotry. Locke never sanctioned such a categorical exclusion of religion from an otherwise secular, neutral, and generally available public benefit program that raises no valid antiestablishment concern.

The Court should not allow the DNR to use a state constitutional provision to eviscerate a church daycare's First and Fourteenth Amendment right to participate equally in society without first surrendering its religious character.


For the foregoing reasons, the Court should reverse the judgment of the court of appeals and hold that categorically excluding Trinity Lutheran from the Scrap Tire Grant Program based solely on its religious status constitutes a violation of the church's free exercise and equal protection rights.