In the

Supreme Court of the United States

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., Petitioner,

v.

SARA PARKER PAULEY, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES, Respondent.

 

 

BRIEF OF RESPONDENT, SARA PARKER PAULEY

STATEMENT OF THE CASE

The Learning Center, a preschool-and-daycare ministry of Trinity Lutheran Church ("Trinity Lutheran"), applied for a competitive grant administered by the Missouri Department of Natural Resources (the "State"). Pet. App. 120a-130a.1 Trinity Lutheran hoped to obtain public funds to offset the cost of resurfacing its playground with recycled scrap-tire material. Id. Though Trinity Lutheran's application scored well in comparison to applicants who were not chosen for funding, the State declined to approve the request, citing Article I, Section 7 of the Missouri Constitution, which reads, in pertinent part: "[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion .... "

Trinity Lutheran sued, alleging that the State's decision not to fund its playground project violated its First Amendment right to freely exercise its religion and its Fourteenth Amendment right to equal protection of the law. The district court granted the State's motion to dismiss Trinity Lutheran's claims, and the Court of Appeals for the Eighth Circuit affirmed.

SUMMARY OF ARGUMENT

The people of Missouri have decided, as a matter of state constitutional policy, that public funds may not be directed to churches. This Court has recognized that state policymakers "retain broad discretion to make 'policy decisions' concerning state spending 'in different ways ... depending on their perceptions of wise state fiscal policy and myriad other circumstances.'" As part of that discretion, policymakers need not make funds available to satisfy every interest. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." While constitutional and statutory limitations may apply in some circumstances, "it is the democratic electoral process that first and foremost provides a check" on the selective advancement of government goals.

Trinity Lutheran argues that the State's policy infringes its First Amendment right to free exercise of religion, but nothing about the policy prohibits the church from fully and freely engaging in religious exercise. Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray, and practice any other aspect of its faith however it wishes. The State merely declines to offer financial support. This Court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it. Regan v. Taxation with Representation of Wash., 461 U.S. 540, 546 (1983). The Free Exercise Clause requires that the State not interfere with Trinity Lutheran's religious activities; it does not require the State to provide funding.

The State's policy is also consistent with long­standing principles of equal protection. Forbidding the direct payment of state funds to churches advances legitimate public interests, which include ensuring that no religious denomination receives preferential treatment over another by the State, respecting taxpayers' concerns of conscience, and protecting religious institutions from heightened government control. Trinity Lutheran's contention that this Court demand a more compelling interest­i.e., that the Court apply strict scrutiny, rather than rational basis review-is contrary to settled precedent and would put at risk the many state and federal laws favoring religious groups over their non­religious counterparts. This Court has never applied such a standard in conducting equal protection review of laws differentiating between religious and non-religious groups absent an accompanying First Amendment violation. It should not do so now.

Because the constraints of the First and Fourteenth Amendments do not apply here, this Court should reaffirm the State's ability to follow the mandate of its citizens in setting spending policy consistent with its citizens' own judgment and values.

 

Trinity Lutheran contends that the State has violated the Free Exercise Clause by categorically declaring religious organizations ineligible to compete for a playground-resurfacing subsidy. But Trinity Lutheran's argument misinterprets the Free Exercise Clause, ignoring its text, history, and this Court's precedent. The Free Exercise Clause, by its plain language, prevents the government from "prohibiting" the free exercise of religion. It does not guarantee churches opportunities for public financing, nor does it require that the government act with strict neutrality toward religious and non-religious interests. The challenged policy places no meaningful restraint on Trinity Lutheran's ability to freely exercise its religion. For that reason, Trinity Lutheran's free exercise claim was properly dismissed.

 

The Free Exercise Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... ". It has been incorporated into the Fourteenth Amendment and is thus applicable to the states.

 

By its plain terms, the Free Exercise Clause applies only to government action that "prohibits" the free exercise of religion. The Free Exercise Clause was adopted in reaction to the oppressive practices our Founders recognized in their former sovereign and similar governments throughout history. ""In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed." By the time our Constitution was ratified, "there was a widespread awareness among many Americans of the dangers of a union of Church and State." To protect against such dangers, the Founders included in the First Amendment the Establishment Clause and the Free Exercise Clause. The former clause forbids the enactment of laws "which establish an official religion," whereas the latter "depends on a showing of governmental compulsion."

Trinity Lutheran's contention that the Free Exercise Clause requires the government to provide equal funding opportunities to religious and non­religious groups alike entirely ignores the text of the Clause. In interpreting the scope and application of a constitutional provision, this Court must begin by looking to the plain text of the Constitution itself; if the meaning is clear, it need look no further. With respect to the Free Exercise Clause, "[t]he crucial word in the constitutional text is 'prohibit.'"

Recently, Justice Thomas observed, "[s]ince well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits."

Trinity Lutheran argues that its ability to fully realize a constitutional right has been frustrated by the government's decision to withhold public funding. But the Constitution does not create an entitlement to government funding simply by recognizing a right as fundamental or protected. Trinity Lutheran cannot even argue that its ability to exercise its constitutional right depends on government support. Trinity Lutheran concedes that its request for playground-resurfacing funding is "wholly secular." The government's refusal to subsidize a church's "wholly secular" playground-resurfacing project likewise does not create an unconstitutional burden on the church's right to freely exercise religion.

The Locke v. Davey petitioner, Davey, qualified for the scholarship in all respects except that he wished to pursue a devotional theology degree, consistent with his interest in training for "a lifetime of ministry, specifically as a church pastor." Because his intended course of study was theological, Davey was denied scholarship funding. Davey sued, alleging that Washington's refusal to award him scholarship funds solely because he wished to pursue a theological degree violated, among other constitutional provisions, the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. This Court found no constitutional violation in Washington's decision to make students who pursued theological degrees ineligible for scholarship funding.

In finding that Washington's funding restriction did not violate the Free Exercise Clause, the Court focused especially on the minimal burden the policy placed on Davey's right to freely exercise his religion. Washington's scholarship program, the Court pointed out, "does not deny to ministers the right to participate in the political affairs of the community.

This Court's holding and analysis in Locke applies squarely to the present case. Trinity Lutheran, like Davey, applied for government funds but was denied funding because of its particular religious status. The State's funding policy here places no meaningful burden on Trinity Lutheran's religious practice-certainly not such a burden that it could reasonably be called a "prohibition" on the free exercise of religion. Despite its ineligibility for the playground-resurfacing grant, there is not a single thing that Trinity Lutheran is prohibited from or penalized for doing as a consequence of state action. It can still worship as it sees fit. It can teach as it sees fit. It can even resurface its playground as it sees fit. The State has merely chosen not to subsidize Trinity Lutheran's activities.

Trinity Lutheran's insistence that its playground-resurfacing project is secular does not solve the problem-money is fungible, and a dollar saved on capital improvements is an extra dollar that can be spent for religious teaching, salaries for church staff, or other religious purposes. It does not necessarily follow, of course, that the State would violate the Establishment Clause if it broadened funding availability to include churches. It simply means that the First Amendment leaves the State room to make a policy choice-this is, as the Court put it, the "play in the joints."

Missouri's original Constitution, adopted in 1820 as part of Missouri's statehood, included language stating that "no man can be compelled to erect, support, or attend any place of worship, or to maintain any minister of the gospel, or teacher of religion. The State of Missouri repeatedly and consistently enacts policies, including Article I, Section 7 of its Constitution, that are protective of religious freedom and aim to support religious objectives. Its decision not to use state funds to support religious organizations is rational, and there is nothing to suggest that it is the product of religious animus.

Trinity Lutheran also points out that, in Locke, Davey requested state funds for an inherently religious purpose-theological education-whereas Trinity Lutheran's intent to resurface its playground is entirely secular. But this distinction does not work in Trinity Lutheran's favor. A state's refusal to support an aspiring pastor's religious education surely exerts a greater pressure on free religious exercise than does a state's refusal to subsidize a church daycare's secular capital improvement project.

In highlighting the secular nature of its renovation project, Trinity Lutheran confuses potential Establishment Clause issues with the free exercise question presented. Trinity Lutheran cites a series of cases in which this Court held that government grants to religious institutions for secular purposes did not violate the Establishment Clause. But this argument misses the point. The State does not argue that giving Trinity Lutheran funds for playground resurfacing would violate the Establishment Clause. Instead, the State merely contends that its decision not to subsidize playground improvements does not "prohibit" Trinity Lutheran from freely exercising its religion. It is difficult to conceive of a less oppressive burden on the exercise of religion than the State's decision not to pay for an elective upgrade to a church's physical property that the church insists is "not remotely religious".

Trinity Lutheran does not attempt to argue that its right to freely exercise its religion would have been violated had it been denied funding simply because its application failed to achieve a sufficiently high score to prevail over other more competitive applicants. Nor does it argue that its ability to freely exercise its religion was impaired prior to its application for funding, when its playground was surfaced with pea gravel. But if Trinity Lutheran's freedom to exercise religion is unaffected by whether it actually receives any money or actually resurfaces its playground, the State's refusal to provide funding here cannot possibly have burdened the church's religious practice. Trinity Lutheran's ability to freely practice its religion, having been deemed ineligible for grant funding here, is no different than had it been denied funding simply because its application was uncompetitive, or had the grant program never been created at all.

Because Trinity Lutheran cannot demonstrate that its free religious exercise was impacted at all-let alone "prohibited"-by the State's discretionary decision not to fund its secular playground­improvement project, Trinity Lutheran's free exercise claim must fail.

Because the State's refusal to provide funding for a "wholly secular" playground-resurfacing project in no way prohibits Trinity Lutheran from fully and freely exercising its religion, the church's Free Exercise Clause claim fails.

The State has a legitimate interest both in prohibiting the direct payment of public resources to religious organizations and in providing special accommodation to religious entities to ensure that their religious practice is free of undue interference. This Court should decline Trinity Lutheran's invitation to upend decades of settled law and instead reaffirm that a state policy treating religious and non-religious groups differently does not offend the Equal Protection Clause as long as the policy is supported by a rational basis.

The State's interest in avoiding sectarian battles for public resources, protecting taxpayers from financially supporting groups they find objectionable, and shielding religion from intrusive government regulation is rational and legitimate. The exclusion of religious groups from eligibility from the playground-resurfacing grant program does not violate the Equal Protection Clause.

CONCLUSION

For the foregoing reasons, the judgment of the United States Court of Appeals for the Eighth Circuit should be affirmed.