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Hein v. Freedom From Religion Foundation

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Hein v. Freedom From Religion Foundation

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In 2007 the Freedom From Religion Foundation sued, claiming that there was a violation of the Establishment Clause, because the conferences would favor religious organizations over nonreligious ones. This is significant as it effects the conferences, and organizations that are both religious and nonreligious.

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Reynolds v. United StatesThe Court examined whether the federal anti-bigamy statute violated the First Amendment's Free Exercise Clause, because plural marriage is part of religious practice. It unanimously upheld the federal law banning polygamy, noting that the Free Exercise Clause forbids government from regulating belief, but does allow government to punish activity judged to be criminal, regardless of an activity's basis in religious belief. ( Citation: 98 US 145) BRI e-Lesson Available

Minersville School District v. GobitisThe Court looked at whether a Pennsylvania law requiring students in school to salute the United States flag infringed on liberties protected by the First and Fourteenth Amendments. It decided 8-1 in favor of the school policy, ruling that the government could require respect for the flag as a key symbol of national unity and a means of preserving national security. In 1943, the Court reversed this ruling in another case, West Virginia State Board of Education v. Barnette (319 US 624). ( Citation: 310 U.S. 586) BRI e-Lesson Available

Cantwell v. Connecticut (1940)
The Court considered whether a Connecticut statute requiring a permit to solicit for religious or charitable purposes violated First Amendment Free Speech or Free Exercise rights. It ruled unanimously against the state, noting that although general regulations on solicitation are legitimate, in allowing local officials to determine which causes were religious and which ones were not and to issue and deny permits accordingly, the state of Connecticut took on the role of determining religious truth-which violated the First and Fourteenth Amendments. The Court also held that the peaceful expression of beliefs is protected by the First Amendment from infringement by not only the federal government, but also by state governments. This was the first time the Court applied the Free Exercise Clause to the states. ( Citation: 310 US 296) BRI e-Lesson Available

Engel v. Vitale The Court looked at whether the daily reading of a state-composed nondenominational prayer in school violated the Establishment Clause of the First Amendment. In a 6-1 decision, the Court ruled that New York's official prayer to begin the school day was an unconstitutional violation of the Establishment Clause. ( Citation: 370 U.S. 421) BRI e-Lesson Available

School District of Abington Township, Pennsylvania v. Schempp (1963)
The Court considered whether a Pennsylvania law and policy of the Abington School District requiring public-school students to participate in classroom exercises involving daily Bible verse reading violated the religious freedom of students under the First and Fourteenth Amendments. In an 8-1 decision, the Court found that the Pennsylvania law and school-district practice violated the Establishment Clause and the Free Exercise Clause. ( Citation: 374 U.S. 203)

Murray v. CurlettThe Court examined this case in combination with Abington v. Schempp (1963), determining whether Baltimore, Maryland, public schools violated the Establishment Clause in conducting daily opening exercises involving reading of the Bible and reciting of the Lord's Prayer. As with Abington v. Schempp, the Maryland school-day religious exercises were declared a violation of the Establishment Clause. ( Citation: 374 US 203)

Estate of Thornton v. Caldor, Inc.The Court looked at whether a Connecticut statute providing employees with the absolute and unqualified right not to work on their chosen Sabbath violated the Establishment Clause of the First Amendment. In a 7-1 decision, the Court held that the Connecticut statute violated the Establishment Clause, because it effectively gave Sabbath religious concerns automatic control over all secular interests at the workplace and took no account of the convenience or interests of the employer or of other employees who do not observe a Sabbath. In this, the statute had a primary effect of advancing a particular religious practice. Thus, the statute failed all parts of the 3-pronged secular purpose test from Lemon v. Kurtzman (403 U. S. 602, 1971). ( Citation: 472 U.S. 703)

The Court considered whether a U.S. Air Force regulation regarding wearing of headgear violated the Free Exercise Clause of the First Amendment by preventing an Orthodox Jewish soldier from wearing his yarmulke while on duty and in uniform. The Court ruled 5-4 that the Air Force regulation did not violate the Constitution. In the opinion, Chief Justice William Rehnquist noted that the Court's "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society" and that "to accomplish its mission, the military must foster instinctive obedience, unity, commitment, and esprit de corps." The Air Force's purpose in its dress regulations is uniformity, and it "reasonably and evenhandedly regulate[s] dress in the interest of" that need. Thus, the First Amendment does not prohibit the Air Force from applying the challenged regulation to the wearing of a yarmulke by a soldier on duty and in uniform, even though that effectively restricts the wearing of headgear required by one's religious beliefs. ( Citation: 475 U.S. 503)

County of Allegheny v. ACLUThe Court looked at whether Allegheny County and the City of Pittsburgh, Pennsylvania, violated the Establishment clause by the county's public holiday display of a Christmas nativity scene (creche) and the city's display of an 18-foot-tall Chanukah menorah next to a 45-foot decorated Christmas tree. In a 5-4 decision, the Court held that the creche display was unconstitutional, but the menorah was permissible. The creche was displayed alone in the courthouse and included an angel holding a banner that said "Gloria in Excelsis Deo" (Latin for "Glory to God in the highest"). The Court said that by including that message and displaying the creche with nothing around it to detract from this religious message, the county was not just celebrating Christmas as a national holiday-which in Lynch v. Donnelly (1984) was ruled permissible despite the holiday's religious origins-but also was "endorsing a patently Christian message: Glory to God for the birth of Jesus Christ," and thus violated the Establishment Clause. The city's menorah and decorated Christmas tree were displayed just outside the City-County building, with a sign at the foot of the tree with the mayor's name and text declaring the city's "salute to liberty." The Court held that by including the menorah with the tree and the sign saluting liberty, "the city conveyed a message of pluralism and freedom of belief" and thus did not violate the Establishment Clause. ( Citation: 492 U.S. 573) BRI E-Lesson Available

Lee v. WeismanThe Court looked at whether officially approved, clergy-led prayer at public school graduations in Providence, Rhode Island, violated the Establishment Clause of the First Amendment. The Court applied the 3-pronged test from Lemon v. Kurtzman (1971) and in a 5-4 decision, held the practice to be a violation of the Establishment Clause. In the Court's opinion, Justice Anthony Kennedy wrote that the state government's involvement in the practice of the clergy-led graduation prayer was pervasive "to the point of creating a state-sponsored and state-directed religious exercise in a public school." ( Citation: 505 US 577 ) BRI E-Lesson Available

Zelman v. Simmons-HarrisThe Court examined whether the state of Ohio's Pilot Project Scholarship Program violated the Establishment Clause in providing tuition vouchers for certain students in the Cleveland City School District to attend participating public or private-including religious and nonreligious-schools of their parents' choosing. In a 5-4 decision, the Court held that the program aid was neutral in all respects toward religion, and that therefore the program did not violate the Establishment Clause. Tuition aid under the program was distributed to parents according to financial need, and where the aid was spent depended solely on where parents chose to enroll their children. ( Citation: 536 US 639) BRI E-Lesson Available

Locke v. Davey The Court considered whether the state of Washington's decision not to award scholarship funds to college students pursuing devotional divinity degrees violated the Free Exercise Clause. The Court held 7-2 that Washington's exclusion of the pursuit of a devotional theology degree from its otherwise inclusive scholarship aid program does not violate the Free Exercise Clause. In its opinion, the Court noted that Washington's program "imposes neither criminal nor civil sanctions on any type of religious service or rite. It neither denies to ministers the right to participate in community political affairs [...] nor requires students to choose between their religious beliefs and receiving a government benefit." Rather, the Court said, the state of Washington has simply chosen not to fund a particular category of instruction. ( Citation: 540 U.S. 712) BRI E-Lesson Available

Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)
The Court reviewed the appeals court's ruling in favor of O Centro Espírita Beneficente União do Vegetal (UDV), finding that the government did not prove a compelling interest in barring the church's sacramental use of hoasca-an illegal drug under the Controlled Substances Act-for religious purposes. The government maintained that the use of hoasca carried with it health risks and that the Controlled Substances Act could accommodate no exceptions. The church had filed for relief under the Religious Freedom Restoration Act of 1993 (RFRA), which prohibits the government from substantially burdening a person's religious exercise unless the government demonstrates that the application of the burden to the person was the least restrictive means of advancing a compelling interest. In a unanimous ruling, the Court affirmed the appeals court's ruling, noting that RFRA requires that a compelling-interest test be performed to address the particular practice at issue. Applying such a test, the Court concluded "that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring UDV's sacramental use of hoasca," because the government's evidence on health risks and the UDV's countering evidence were equally balanced. In addition, the government's claim that the Controlled Substance Act could hold no exceptions did not stand up, because there was already an exception made for the Native American religious use of peyote. ( Citation: 546 U.S. 418)

The Bill of Rights Institute is grateful to
The George Washington Institute for Religious Freedom
and
The Ambassador John L. Loeb Visitor's Center at the Touro Synagogue, Newport, Rhode Island
for making Religious Liberty: The American Experiment a reality.

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Religious Liberty: Landmark Supreme Court Cases - Bill of Rights Institute

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Landmark Supreme Court Cases Reynolds v. United States (1879) The Court examined whether the federal anti-bigamy statute violated the First Amendment's Free Exercise Clause, because plural marriage is part of religious practice. It unanimously upheld the federal law banning polygamy, noting that the Free Exercise Clause forbids government from regulating belief, but does allow government [...]

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Trinity Lutheran Church of Columbia, Inc. v. Carol Comer

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Trinity Lutheran Church of Columbia, Inc. v. Carol Comer

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The learning center wanted to participate in a program which makes playground surfaces from recycled tires and offers grants to non-profit organizations. The Department of Natural Resources denied them the grant because the learning center is owned by a church. The Church sued under the Free Exercise Clause of the First Amendment.

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SUPREME COURT OF THE UNITED STATES

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No. 15-577

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TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 26, 2017]

Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government-that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country's longstanding commitment to a separation of church and state beneficial to both.

I

Founded in 1922, Trinity Lutheran Church (Church) "operates . . . for the express purpose of carrying out the commission of . . . Jesus Christ as directed to His church on earth." Our Story, http://www.trinity-lcms.org/story (all internet materials as last visited June 22, 2017). The Church uses "preaching, teaching, worship, witness, service, and fellowship according to the Word of God" tocarry out its mission "to 'make disciples.' " Mission, http://www.trinity-lcms.org/mission (quoting Matthew 28:18-20). The Church's religious beliefs include its desire to "associat[e] with the [Trinity Church Child] Learning Center." App. to Pet. for Cert. 101a. Located on Church property, the Learning Center provides daycare and preschool for about "90 children ages two to kindergarten." Id., at 100a.

The Learning Center's facilities include a playground, the unlikely source of this dispute. The Church provides the playground and other "safe, clean, and attractive" facilities "in conjunction with an education program structured to allow a child to grow spiritually, physically, socially, and cognitively." Ibid. This case began in 2012 when the Church applied for funding to upgrade the playground's pea gravel and grass surface through Missouri's Scrap Tire Program, which provides grants for the purchase and installation of recycled tire material to resurface playgrounds. The Church sought $20,000 for a $30,580 project to modernize the playground, part of its effort to gain state accreditation for the Learning Center as an early childhood education program. Missouri denied the Church funding based on Article I, §7, of its State Constitution, which prohibits the use of public funds "in aid of any church, sect, or denomination of religion."

II

A

The government may not directly fund religious exercise. See Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) ; Mitchell, 530 U. S., at 840 (O'Connor, J., concurring in judgment) ("[O]ur decisions provide no precedent for the use of public funds to finance religious activities" (internal quotation marks omitted)). Put in doctrinal terms, such funding violates the Establishment Clause because it impermissibly "advanc[es] . . . religion."[ 1] Agostini v. Felton, 521 U. S. 203 -223 (1997).

Nowhere is this rule more clearly implicated than when funds flow directly from the public treasury to a house of worship.[ 2] A house of worship exists to foster and further religious exercise. There, a group of people, bound by common religious beliefs, comes together "to shape its own faith and mission." Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012) . Within its walls, worshippers gather to practice and reaffirm their faith. And from its base, the faithful reach out to those not yet convinced of the group's beliefs. When a government funds a house of worship, it underwrites this religious exercise.

Tilton v. Richardson, 403 U. S. 672 (1971) , held as much. The federal program at issue provided construction grants to colleges and universities but prohibited grantees from using the funds to construct facilities " 'used for sectarian instruction or as a place for religious worship' " or " 'used primarily in connection with any part of the program of a school or department of divinity.' " Id., at 675 (plurality opinion) (quoting 20 U. S. C. §751(a)(2) (1964 ed., Supp. V)). It allowed the Federal Government to recover the grant's value if a grantee violated this prohibition within twenty years of the grant. See 403 U. S., at 675. The Court unanimously agreed that this time limit on recovery violated the Establishment Clause. "[T]he original federal grant w[ould] in part have the effect of advancing religion," a plurality explained, if a grantee "converted [a facility] into a chapel or otherwise used [it] to promote religious interests" after twenty years. Id., at 683; see also id., at 692 (Douglas, J., concurring in part and dissenting in part); Lemon v. Kurtzman, 403 U. S. 602 -661 (1971) (Brennan, J., concurring); id., at 665, n. 1 (opinion of White, J.). Accordingly, the Court severed the twenty-year limit, ensuring that program funds would be put to secular use and thereby bringing the program in line with the Establishment Clause. See Tilton, 403 U. S., at 683 (plurality opinion).

This case is no different. The Church seeks state funds to improve the Learning Center's facilities, which, by the Church's own avowed description, are used to assist the spiritual growth of the children of its members and to spread the Church's faith to the children of nonmembers. The Church's playground surface-like a Sunday School room's walls or the sanctuary's pews-are integrated with and integral to its religious mission. The conclusion that the funding the Church seeks would impermissibly advance religion is inescapable.

True, this Court has found some direct government funding of religious institutions to be consistent with the Establishment Clause. But the funding in those cases came with assurances that public funds would not be used for religious activity, despite the religious nature of the institution. See, e.g., Rosenberger, 515 U. S., at 875-876 (Souter, J., dissenting) (chronicling cases). The Church has not and cannot provide such assurances here.[ 3] See Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 774 (1973) ("No attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions"). The Church has a religious mission, one that it pursues through the Learning Center. The playground surface cannot be confined to secular use any more than lumber used to frame the Church's walls, glass stained and used to form its windows, or nails used to build its altar.

B

The Court may simply disagree with this account of the facts and think that the Church does not put its playground to religious use. If so, its mistake is limited to this case. But if it agrees that the State's funding would further religious activity and sees no Establishment Clause problem, then it must be implicitly applying a rule other than the one agreed to in our precedents.

Today's opinion suggests the Court has made the leap the Mitchell plurality could not. For if it agrees that the funding here will finance religious activities, then only a rule that considers that fact irrelevant could support a conclusion of constitutionality. The problems of the "secular and neutral" approach have been aired before. See, e.g., id., at 900-902 (Souter, J., dissenting). It has no basis in the history to which the Court has repeatedly turned to inform its understanding of the Establishment Clause. It permits direct subsidies for religious indoctrination, with all the attendant concerns that led to the Establishment Clause. And it favors certain religious groups, those with a belief system that allows them to compete for public dollars and those well-organized and well-funded enough to do so successfully.[ 4]

III

Even assuming the absence of an Establishment Clause violation and proceeding on the Court's preferred front-the Free Exercise Clause-the Court errs. It claims that the government may not draw lines based on an entity's religious "status." But we have repeatedly said that it can. When confronted with government action that draws such a line, we have carefully considered whether the interests embodied in the Religion Clauses justify that line. The question here is thus whether those interests support the line drawn in Missouri's Article I, §7, separating the State's treasury from those of houses of worship. They unquestionably do.

A

The Establishment Clause prohibits laws "respecting an establishment of religion" and the Free Exercise Clause prohibits laws "prohibiting the free exercise thereof." U. S. Const., Amdt. 1. "[I]f expanded to a logical extreme," these prohibitions "would tend to clash with the other." Walz, 397 U. S., at 668-669. Even in the absence of a violation of one of the Religion Clauses, the interaction of government and religion can raise concerns that sound in both Clauses. For that reason, the government may sometimes act to accommodate those concerns, even when not required to do so by the Free Exercise Clause, without violating the Establishment Clause. And the government may sometimes act to accommodate those concerns, even when not required to do so by the Establishment Clause, without violating the Free Exercise Clause. "[T]here is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Id., at 669. This space between the two Clauses gives government some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.

When reviewing a law that, like this one, singles out religious entities for exclusion from its reach, we thus have not myopically focused on the fact that a law singles out religious entities, but on the reasons that it does so.

B

Missouri has decided that the unique status of houses of worship requires a special rule when it comes to public funds. Its Constitution reflects that choice and 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, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship." Art. I, §7.

Missouri's decision, which has deep roots in our Nation's history, reflects a reasonable and constitutional judgment.

1

This Nation's early experience with, and eventual rejection of, established religion-shorthand for "sponsorship, financial support, and active involvement of the sovereign in religious activity," Walz, 397 U. S., at 668-defies easy summary. No two States' experiences were the same. In some a religious establishment never took hold. See T. Curry, The First Freedoms 19, 72-74, 76-77, 159-160 (1986) (Curry). In others establishment varied in terms of the sect (or sects) supported, the nature and extent of that support, and the uniformity of that support across the State. Where establishment did take hold, it lost its grip at different times and at different speeds. See T. Cobb, The Rise of Religious Liberty in America 510-511 (1970 ed.) (Cobb).

Despite this rich diversity of experience, the story relevant here is one of consistency. The use of public funds to support core religious institutions can safely be described as a hallmark of the States' early experiences with religious establishment. Every state establishment saw laws passed to raise public funds and direct them toward houses of worship and ministers. And as the States all dises-tablished, one by one, they all undid those laws.[ 5]

Those who fought to end the public funding of religion based their opposition on a powerful set of arguments, all stemming from the basic premise that the practice harmed both civil government and religion. The civil government, they maintained, could claim no authority over religious belief. For them, support for religion compelled by the State marked an overstep of authority that would only lead to more. Equally troubling, it risked divisiveness by giving religions reason to compete for the State's beneficence. Faith, they believed, was a personal matter, entirely between an individual and his god. Religion was best served when sects reached out on the basis of their tenets alone, unsullied by outside forces, allowing adherents to come to their faith voluntarily. Over and over, these arguments gained acceptance and led to the end of state laws exacting payment for the support of religion.

Take Virginia. After the Revolution, Virginia debated and rejected a general religious assessment. The proposed bill would have allowed taxpayers to direct payments to a Christian church of their choice to support a minister, exempted "Quakers and Menonists," and sent undirected assessments to the public treasury for "seminaries of learning." A Bill Establishing a Provision for Teachers of the Christian Religion, reprinted in Everson, 330 U. S., at 74 (supplemental appendix to dissent of Rutledge, J.).

Madison contributed one influential voice to a larger chorus of petitions opposed to the bill. Others included "the religious bodies of Baptists, Presbyterians, and Quakers." T. Buckley, Church and State in Revolutionary Virginia 1776-1787, p. 148 (1977). Their petitions raised similar points. See id., at 137-140, 148-149. Like Madison, many viewed the bill as a step toward a dangerous church-state relationship. See id., at 151. These voices against the bill won out, and Virginia soon prohibited religious assessments. See Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders' Constitution 84-85.

This same debate played out in nearby Maryland, with the same result. In 1784, an assessment bill was proposed that would have allowed taxpayers to direct payments to ministers (of sufficiently large churches) or to the poor. Non-Christians were exempt. See Curry 155. Controversy over the bill "eclipse[d] in volume of writing and bitter-ness of invective every other political dispute since the debate over the question of independence." J. Rainbolt, The Struggle To Define "Religious Liberty" in Maryland, 1776-85, 17 J. Church & State 443, 449 (1975). Critics of the bill raised the same themes as those in Virginia: that religion "needs not the power of rules to establish, but only to protect it"; that financial support of religion leads toward an establishment; and that laws for such support are "oppressive." Curry 156, 157 (internal quotation marks omitted); see also Copy of Petition [to General Assembly], Maryland Gazette, Mar. 25, 1785, pp. 1, 2, col.1 ("[W]hy should such as do not desire or make conscience of it, be forced by law"). When the legislature next met, most representatives "had been elected by anti-assessment voters," and the bill failed. Curry 157. In 1810, Maryland revoked the authority to levy religious assessments. See Md. Const., Amdt. XIII (1776), in 3 Federal and State Constitutions 1705 (F. Thorpe ed. 1909) (Thorpe).

In New England, which took longer to reach this conclusion, Vermont went first. Its religious assessment laws were accommodating. A person who was not a member of his town's church was, upon securing a certificate to that effect, exempt. See L. Levy, The Establishment Clause 50 (1994) (Levy). Even so, the laws were viewed by many as violating Vermont's constitutional prohibition against involuntary support of religion and guarantee of freedom of conscience. See, e.g., Address of Council of Censors to the People of Vermont 5-8 (1800) ("[R]eligion is a concern personally and exclusively operative between the individual and his God"); Address of Council of Censors [Vermont] 3-7 (Dec. 1806) (the laws' "evils" included "violence done to the feelings of men" and "their property," "animosities," and "the dangerous lengths of which it is a foundation for us to go, in both civil and religious usurpation"). In 1807, Vermont "repealed all laws concerning taxation for religion." Levy 51.

In New Hampshire, a steady campaign against religious assessments led to a bill that was subjected to "the scru-tiny of the people." C. Kinney, Church & State: The Strug-gle for Separation in New Hampshire, 1630-1900, p. 101 (1955) (Kinney). It was nicknamed "Dr. Whipple's Act" after its strongest advocate in the State House. Orford Union Congregational Soc. v. West Congregational Soc. of Orford, 55 N. H. 463, 468-469, n. (1875). He defended the bill as a means "to take religion out of politics, to eliminate state support, to insure opportunity to worship with true freedom of conscience, [and] to put all sects and denominations of Christians upon a level." Kinney 103. The bill became law and provided "that no person shall be compelled to join or support, or be classed with, or associated to any congregation, church or religious society without his express consent first had and obtained." Act [of July 1, 1819] Regulating Towns and Choice of Town Officers §3, in 1 Laws of the State of New Hampshire Enacted Since June 1, 1815, p. 45 (1824). Massachusetts held on the longest of all the States, finally ending religious assessments in 1833. See Cobb 515.[ 6]

The course of this history shows that those who lived under the laws and practices that formed religious establishments made a considered decision that civil government should not fund ministers and their houses of worship. To us, their debates may seem abstract and this history remote. That is only because we live in a society that has long benefited from decisions made in response to these now centuries-old arguments, a society that those not so fortunate fought hard to build.

2

As was true in Locke, a prophylactic rule against the use of public funds for houses of worship is a permissible accommodation of these weighty interests. The rule has a historical pedigree identical to that of the provision in Locke. Almost all of the States that ratified the Religion Clauses operated under this rule. See 540 U. S., at 723. Seven had placed this rule in their State Constitutions.[ 7] Three enforced it by statute or in practice.[ 8] Only one had not yet embraced the rule.[ 9] Today, thirty-eight States have a counterpart to Missouri's Article I, §7.[ 10] The provisions, as a general matter, date back to or before these States' original Constitutions.[ 11] That so many States have for so long drawn a line that prohibits public funding for houses of worship, based on principles rooted in this Nation's understanding of how best to foster religious liberty, supports the conclusion that public funding of houses of worship "is of a different ilk." Locke, 540 U. S., at 723.

Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.

3

In the Court's view, none of this matters. It focuses on one aspect of Missouri's Article I, §7, to the exclusion of all else: that it denies funding to a house of worship, here the Church, "simply because of what it [i]s-a church." Ante, at 12. The Court describes this as a constitutionally impermissible line based on religious "status" that requires strict scrutiny. Its rule is out of step with our precedents in this area, and wrong on its own terms.

The Constitution creates specific rules that control how the government may interact with religious entities. And so of course a government may act based on a religious entity's "status" as such. It is that very status that implicates the interests protected by the Religion Clauses. Sometimes a religious entity's unique status requires the government to act. See Hosanna-Tabor, 565 U. S., at 188-190. Other times, it merely permits the government to act. See Part III-A, supra. In all cases, the dispositive issue is not whether religious "status" matters-it does, or the Religion Clauses would not be at issue-but whether the government must, or may, act on that basis.

The Court takes two steps to avoid these precedents. First, it recasts Locke as a case about a restriction that prohibited the would-be minister from "us[ing] the funds to prepare for the ministry." Ante, at 12. A faithful reading of Locke gives it a broader reach. Locke stands for the reasonable proposition that the government may, but need not, choose not to fund certain religious entities (there, ministers) where doing so raises "historic and substantial" establishment and free exercise concerns. 540 U. S., at 725. Second, it suggests that this case is different because it involves "discrimination" in the form of the denial of access to a possible benefit. Ante, at 11. But in this area of law, a decision to treat entities differently based on distinctions that the Religion Clauses make relevant does not amount to discrimination.[ 12] To understand why, keep in mind that "the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Wallace v. Jaffree, 472 U. S. 38 -53 (1985). If the denial of a benefit others may receive is discrimination that violates the Free Exercise Clause, then the accommodations of religious entities we have approved would violate the free exercise rights of nonreligious entities. We have, with good reason, rejected that idea, see, e.g., Amos, 483 U. S., at 338-339, and instead focused on whether the government has provided a good enough reason, based in the values the Religion Clauses protect, for its decision.[ 13]

On top of all of this, the Court's application of its new rule here is mistaken. In concluding that Missouri's Article I, §7, cannot withstand strict scrutiny, the Court describes Missouri's interest as a mere "policy preference for skating as far as possible from religious establishment concerns." Ante, at 14. The constitutional provisions of thirty-nine States-all but invalidated today-the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.[ 14]

Today's decision discounts centuries of history and jeopardizes the government's ability to remain secular. Just three years ago, this Court claimed to understand that, in this area of law, to "sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8). It makes clear today that this principle applies only when preference suits.

IV

The Religion Clauses of the First Amendment contain a promise from our government and a backstop that disables our government from breaking it. The Free Exercise Clause extends the promise. We each retain our inalien-able right to "the free exercise" of religion, to choose for ourselves whether to believe and how to worship. And the Establishment Clause erects the backstop. Government cannot, through the enactment of a "law respecting an establishment of religion," start us down the path to the past, when this right was routinely abridged.

The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that-at least in this case and perhaps in others, see ante at 14, n. 3-it must do so when-ever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.

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

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SUPREME COURT OF THE UNITED STATES _________________ No. 15-577 _________________ TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURALRESOURCES on writ of certiorari to the united states court of appeals for the eighth circuit [June 26, 2017] Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.