Amicus Curiae Brief — Trinity Lutheran Church of Columbia, Inc. v. Pauley, 136 S. Ct. 891 (2016) (No. 15-577)

RECORD

¥ AND

GRIEFe

eypremnu Gaur, Ute ~

FILED

No. 15-577 JUL - 5 2016

een er CLERK

3n The

Supreme Court of the Anited States

—¢

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,

Petitioner,

Vv.

SARAH PARKER PAULEY, DIRECTOR,

MISSOURI DEPARTMENT OF NATURAL RESOURCES,

Respondc 1.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

So

BRIEF OF BAPTIST JOINT COMMITTEE FOR

RELIGIOUS LIBERTY AND GENERAL SYNOD

OF THE UNITED CHURCH OF CHRIST AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

¢

K. HOLLYN HOLLMAN

Counsel of Record

JENNIFER L. HAWKS

BAPTIST JOINT COMMITTEE

FOR RELIGIOUS LIBERTY

200 Maryland Ave., N.E.

Washington, D.C. 20002

202-544-4226

bjc@bjconline.org

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

py SF Ee Pl bye) 5 ogy! enn ili

INTEREST OF AMICI CURIAE ....................00... 1

SUMMARY OF ARGUMENT .........................0008- 3

ITE. sisi tnktphtnsendaddadeienhinncdnibeniiiuinsmmmiadbinens 5

1. HISTORY, PRACTICE, AND PRECEDENT

SUPPORT LEGAL PROHIBITIONS ON

DIRECT GOVERNMENT FUNDING OF

CII sndnascnndssinmeastindnivadiadntdassvbintneds 6

A. Tax support for churches was a central

element of religious establishments

and a principle impetus for the fight

for religious liberty led by religious

SII cdacsnindiiddcasadchetninninestntdetbioiiines 7

B. Churches are quintessential religious

entities accorded special legal status

to protect their autonomy and reli-

SE ST nushicnepstadudteenbidmenibabipennbanaes 13

C. This Court’s Establishment Clause

jurisprudence recognizes the unique

status of churches and the special

dangers associated with government

SUSREEN OE CTRURGMED 6...cccccesecccscsceesecees. 18

Il. MISSOURI’S CONSTITUTIONAL PRO-

HIBITION ON DIRECT FUNDING OF

CHURCHES PROTECTS RELIGIOUS

LIBERTY AND CANNOT BE _ DIS-

MISSED AS RELIGIOUS STATUS DIS-

EE aksccrtihinscddsdasessiagedanpbibiandetine 22

ul

TABLE OF CONTENTS — Continued

Page

A. Federalism allows states to maintain

an independence of religion and gov-

ernment beyond what the Establish-

ment Clause requires ................. Seiiaistiiee 22

B. Missouri’s historic and consistent

policy is well founded and cannot be

dismissed as religious status discrimi-

i ircmiscitredicetatatmiensccestetuesaniéenseneetees 24

C. Missouri’s implementation of its grant

program, consistent with its consti-

tutional ban on direct funding of

churches, is a valid exercise of federal-

ism well within a narrow reading of

I a a 31

ET TT a a ET 35

APPENDIX

State Constitutional Provisions.......................--. App. 1

ui

TABLE OF AUTHORITIES

Page

SUPREME CouRT OPINIONS

Ariz. Christian Sch. Tuition Org. v. Winn, 563

kT IRE AAA SNOT OO ER ee re ao 10, 11

Bowen v. Kendrick, 487 U.S. 589 (1988)..................... 20

Church of Lukumi Babalu Aye v. Hialeah, 508

a a AE AES re SS RS ee ee 33

Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S.

aca aati aa daichii iaaaenaintanil 16, 17

Everson v. Bd. of Educ. , 330 U.S. 1 (1947)...... 10, 11, 20

Good News Club v. Milford Cent. Sch., 533 U.S.

I ITIIT 2 iets ctateincinestatthieahceataesiahadaeiedetaaiatinnninuateneauniaciees 20

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 132 S. Ct. 694 (2012) ............... 6, 14

Locke v. Davey, 540 U.S. 712 (2004) ................0.. passim

Marks v. United States, 430 U.S. 188 (1977).............. 18

McDaniel v. Paty, 435 U.S. 618 (1978).................00000 33

Mitchell v. Helms, 530 U.S. 793 (2000)..... 18, 19, 25, 32

Rosenberger v. Rector & Visitors of the Univ. of

ails SEE ES MIE IIE sscececcccsievesscccesasenccsoninonse 18, 20

Walz v. Tax Comm’n of N.Y., 397 U.S. 664

REIN iisciesueniniatesiinsiandsiiddisddionepteiiadatieiimebinntés 8, 13, 23, 24

Widmar v. Vincent, 454 U.S. 263 (1981) ..................4:. 20

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)....... 19

iV

TABLE OF AUTHORITIES — Continued

Page

FEDERAL COURT OPINIONS

Trinity Lutheran Church of Columbia, Inc. v.

Pauley, 788 F.3d 779 (8th Cir. 2015)................... 5, 31

Trinity Lutheran Church of Columbia, Inc. v.

Pauley, 976 F. Supp. 2d 1137 (W.D. Mo. 2013) ....... 15

STATE CASES

Goodridge v. Dep’t of Pub. Health, 798 N.E.2d

2 EERE SR EE ae ORR 22

Harfst v. Hoegen, 163 S.W.2d 609 (Mo. 1942) ............ 30

People v. Scott, 593 N.E.2d 1328 (NLY. 1992)............. .22

State v. Schmid, 423 A.2d 615 (N.J. 1980) ................. 22

CONSTITUTIONS AND STATUTES

U.S. Const. amend. I

Establishment Clause...................ccccsceeeeeeeeeees passim

cree ciinaminiia tal passim

I IIIS... canccsscncadscenseteneeveceans 1, 23, 24

STEN Le eR a tL ee A passim

Church Arson Prevention Act of 1996, 18 U.S.C.

SII TIT intonation cushaaianideidakbinigubmechiiideginnlibiconidarerte 14

Religious Land Use and Institutionalized Per-

sons Act of 2000, 42 U.S.C. § 2000cc-5 (2012) ........ 14

I i. cccncesnnvtncnnetebnedineeieiies 26, 27, 29

SE I HII, TATE Ts ciscietiscnncnpnistnsnndiinnmendiinias 26, 27, 31

Vv

TABLE OF AUTHORITIES — Continued

I 26, 27

“A Bill for Establishing Religious Freedom,” re-

printed in 2 Papers of T’x as Jefferson 546

i ED SIIIE cesreescerenecesictntedeticesnoneen 11, 12, 28, 29

SECONDARY SOURCES

Isaac Backus, An Appeal to the Public for Reli-

gious Liberty against the Oppressions of the

Present Day, (1773), http://classicliberal.tripod.

a ccnddiidanernaouen 9

The Federal and State Constitutions, Colonial

Charters, and Other Organic Laws of the

States, Territories, and Colonies Now or Here-

tofore Forming the United States of America

(Francis Newton Thorpe ed., 1909) ...... 27, 28, 29, 31

Ronald B. Flowers, Melissa Rogers, and Steven

K. Green, Religious Freedom and the Supreme

I iacinicinditnisapeanmiesdahennnstiibinbdidaiientidensiiniuns 8, 10

Douglas Laycock, Church and State in the

United States: Competing Conceptions and

Historic Changes, 13 Ind. J. Global Legal

EE LS TE Oe AS aE 10, 12

Douglas Laycock, “Nonpreferential” Aid to Reli-

gion: A False Claim about Original Intent, 27

Wm. & Mary L. Rev. 875 (1986)............ccccceeseeeeeeees 25

John Leland, The Virginia Chronicle (1790) re-

printed in The Writings of the late Elder John

Leland (Miss L.F. Greene ed., 1845).............cccccee0000" 9

vi

TABLE OF AUTHORITIES — Continued

Ira C. Lupu and Robert Tuttle, Federalism and

Faith, 56 Emory L.J. 19 (2006) ...................cceeees

Ira C. Lupu and Robert Tuttle, Secular Govern-

ment Religious People (2014) .............--cccecseeeeeees

Michael W. McConnell, Establishment and Dis-

establishment at the Founding, Part 1: Estab-

lishment of Religion, 44 Wm. & Mary L. Rev.

EE iiiclbiniiittiicintmintncintsipesticnmmmmabiametinienens

Jesse R. Merriam, Finding a Ceiling in a Circu-

lar Room: Locke v. Davey, Religious Neutral-

ity, and Federalism, 16 Temp. Pol. & C.R. L.

EC SR PS ae 2

Religious Land Use and Institutionalized Per-

sons Act, Manager’s Statement, 146 Cong.

Rec. S7774 (daily ed., July 27, 2000) (joint

statement of Senator Hatch and Senator Ken-

“Texas Man Pleads Guilty in Arson of Mosque

Playground” Religious Freedom in Focus

45 US. Dep't of Just. C.R. Div. (2011),

https://www.justice.gov/crt/religious-freedom-

I . ceibalibamehsesaninens

1

INTEREST OF AMICI

The Baptist Joint Committee for Religious

Liberty has vigorously supported religious liberty in

the historic Baptist tradition for all of its eighty years.

The BJC serves fifteen supporting organizations, in-

cluding state and national Baptist conventions and

conferences, and churches in Missouri and throughout

the country. It addresses only religious liberty and

church-state separation issues, and believes that

strong enforcement of both Religion Clauses is essen-

tial to religious liberty for all Americans.'

In addition to supporting the free exercise protec-

tion offered by the First Amendment, the BJC has

championed federal statutes, including the Religious

Freedom Restoration Act of 1993, and state constitu-

tions and statutes that protect religious liberty beyond

what is required by the Free Exercise Clause.

Likewise, the BJC has steadfastly opposed the di-

rect funding of houses of worship and other pervasively

religious institutions on the grounds that such funding

betrays the promise of the Establishment Clause. Sim-

ilar to its support for many federal and state permis-

sive accommodations of religion that go beyond what

the Free Exercise Clause requires, the BJC supports

Missouri’s more explicit state constitutional no-aid

provisions as a permissible policy to advance a historic

1 This brief was prepared entirely by amici. No other person

made any financial contribution to its preparation or submission.

Consents are on file with the Clerk.

2

and substantial religious liberty interest beyond what

may be required by the Establishment Clause.

Amicus curiae General Synod of the United

Church of Christ is the representative body of the

national setting of the United Church of Christ

(UCC). The UCC was formed in 1957, by the union of

the Evangelical and Reformed Church and The

General Council of the Congregational Christian

Churches of the United States in order to express

more fully the oneness in Christ of the churches com-

posing it, to make more effective their common witness

in Christ, and to serve God’s people in the world. The

UCC has 5,000 churches in the United States, with a

membership of approximately 944,000.

The General Synod of the UCC, various settings of

the UCC, and its predecessor denominations, have a

rich heritage of promoting religious freedom and toler-

ance. Believing that churches are strengthened, not

weakened, by the principle of the separation of church

and state, the UCC has long acknowledged its respon-

sibility to protect the right of all to believe and worship

voluntarily as conscience dictates, and to oppose efforts

to have government at any level support or promote

the views of one faith community more than another.

At its twentieth gathering, the General Synod contin-

ued this legacy by encouraging the involvement of the

United Church of Christ in a national campaign to pro-

mote the principle of the separation of church and

state and the proper role of religion in society.

Sd

3

SUMMARY OF ARGUMENT

This Court has never held that the Establishment

Clause would allow the direct funding of churches,

much less that the Constitution requires it. From its

first constitution in 1820, Missouri has prohibited

state funding of churches. Similar provisions exist in

thirty-nine other states, reflecting a commitment to re-

ligious freedom firmly rooted in history and experi-

ence. Indeed, special treatment of churches in our

constitutional tradition, like the treatment of religion

itself, is a means of protecting religious liberty, not a

mark of hostility toward or discrimination against re-

ligion. It would profoundly upend our constitutional

history, state and federal, to require Missouri to fund

the improvement of church property.

Missouri’s constitutional provision against fund-

ing churches, applied to its scrap tire program, is a

legitimate bright-line rule that protects religious free-

dom. Tax support of churches was a primary mark of

the religious establishments during the founding era

and the target of colonial efforts by religious dissenters

to disestablish religion from government. The hard-

won battles to break free from the burden of tax sup-

port for churches were central to the development of

the First Amendment and the American legal tradition

of religious liberty. Churches remain the quintessen-

tial expressions of religious experience, recognized as

having unique legal status and autonomy rights. It is

4

hardly a novel concept that the responsibility for main-

taining and improving church property would rest

with the church, not the state, and that states would

avoid funding churches.

This Court has recognized the special dangers as-

sociated with direct funding of churches, as well as the

necessity of safeguards to avoid government funding of

religion in the context of other religious institutions.

States, too, have long had an interest in promoting re-

ligious freedom by maintaining a separation between

tax-supported endeavors and religion beyond what the

Establishment Clause may require.

Missouri's constitutional no-aid provisions protect

the independence and autonomy of religious institu-

tions. The question before the Court in this case —

whether it is constitutional for Missouri to operate a

tax-supported program in a way designed to avoid his-

toric and substantial anti-establishment concerns, con-

sistent with its state constitution — was asked and

answered in Chief Justice Rehnquist’s majority opin-

ion in Locke v. Davey. None of Petitioner’s attempts

to shrink the Court’s decision in Locke are justified.

Petitioner’s effort to recast Missouri’s constitutional

prohibition on the funding of churches as a mark of

constitutional suspicion, hostility, or discrimination

should be rejected.

5

ARGUMENT

As the Court of Appeals correctly noted, Petitioner

is a church that seeks an “unprecedented” ruling that

the Federal Constitution not only permits, but re-

quires, “the grant of public funds to a church.” Trinity

Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d

779, 783 (8th Cir. 2015). For many good reasons, this

Court has never before had the occasion to consider a

case involving a possible direct grant of monetary aid

to a church.’ In a variety of religious liberty cases, how-

ever, this Court has recognized the importance of

avoiding government funding of religion, even in cases

where aid to religious institutions has been upheld. In

our constitutional tradition, restrictions on aid to reli-

gious institutions are never inherently suspect. On the

contrary, in both federal and state law, such re-

strictions are widespread, long-standing, and effective

means to protect crucial constitutional boundaries.

As Chief Justice Rehnquist explained with regard

to a similar state constitutional provision in Locke v.

Davey, “the United States and state constitutions

embody distinct views — in favor of free exercise, but

opposed to establishment.” 540 U.S. 712, 721 (2004).

That Missouri would establish a bright-line bar on di-

rect funding of churches is “a product of these views,

not evidence of hostility toward religion.” Jd. Mis-

souri’s categorical exclusion of churches in its scrap

* In this brief, we extensively use the term “church” as rep-

resentative of similar bodies organized for corporate worship.

6

tire program is firmly rooted in the state’s constitu-

tional law. It allows the state to avoid the risk of fund-

ing religion or policing the line between religious and

nonreligious activity on church facilities. Neither equal

protection nor free exercise requires the State to fund

churches.

I. HISTORY, PRACTICE, AND PRECEDENT

SUPPORT LEGAL PROHIBITIONS ON

DIRECT GOVERNMENT FUNDING OF

CHURCHES

Special treatment of churches in our constitu-

tional tradition, like the special treatment of religion

itself,’ is a means of protecting religious liberty and the

freedom and integrity of religious institutions, not a

mark of hostility toward or discrimination against re-

ligion. It reflects a proper and historic understanding

of the relationship between institutions of government

and those of religion. Each has distinct funding

sources, and each has primary roles and responsibili-

ties that are best maintained through independence

from one another.

3 Rejecting a claim that a church should be treated no dif-

ferently than a labor union or social club, this Court recognized

the special autonomy of churches as grounded in the First Amend-

ment noting “the text of the First Amendment itself, which gives

special solicitude to the rights of religious organizations.”

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

132 S. Ct. 694, 706 (2012).

7

A. Tax support for churches was a central

element of religious establishments and

a principle impetus for the fight for re-

ligious liberty led by religious dissent-

ers.

Breaking from their European heritage and colo-

nial experience of government-established churches,

America’s Founders pursued a new vision of religious

liberty that separated the institutions of religion and

government. The First Amendment explicitly limited

Congressional power in matters of religion: “Congress

shall make no law respecting an establishment of reli-

gion, or prohibiting the free exercise thereof.” U.S.

Const. amend. I. This separationist ideal that includes

both elements of no establishment and guarantees for

free exercise has also been a foundation of state consti-

tutions, including Missouri’s, intentionally seeking to

protect religious liberty in ways that are distinct, and

often more robust, than the First Amendment.

Leading legal scholars who have studied the es-

tablishment of religion in colonial America cite tax

support of churches as a central element of religious

establishments.‘ “First and foremost, [religious estab-

lishment] signified the financial support of recognized

* See Ira C. Lupu and Robert Tuttle, Secular Government Re-

ligious People 5 (2014), “Through various kinds of religious estab-

lishments, governments declared and enforced orthodox beliefs,

imposed taxes to support ministers and churches, and compelled

attendance at worship.” See also Michael W. McConnell, Estab-

lishment and Disestablishment at the Founding, Part 1: Establish-

ment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131 (2003),

finding six categories of establishment: “(1) control over doctrine,

8

ministers and their churches by the government....

But more than anything, a religious establishment

meant an interdependency of sacred and profane insti-

tutions, whereby both the church and the state rein-

forced and legitimized each other.” Ronald B. Flowers,

Melissa Rogers, and Steven K. Green, Religious Free-

dom and the Supreme Court 15 (2008). This aspect of

our country’s history has long informed this Court’s

understanding of the proper meaning of the Religion

Clauses as providing a separation between the institu-

tions of religion and government in ways that have

avoided advancement, entanglement, sponsorship, and

hostility, while recognizing the important role of reli-

gious institutions. As this Court noted in upholding a

permissive accommodation of a property tax exemp-

tion for churches, “for the men who wrote the Religion

Clauses of the First Amendment the ‘establishment’ of

a religion connoted sponsorship, financial support, and

active involvement of the sovereign in religious activ-

ity.” Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 668

(1970) (emphasis added).

The historical fight for disestablishment, led by

Baptists and other religious dissenters, is well docu-

mented. Far from discriminating against religion, dis-

establishment marked an essential step toward the

governance, and personnel of the church; (2) compulsory church

attendance; (3) financial support; (4) prohibitions on worship in

dissenting churches; (5) use of church institutions fur public func-

tions; and (6) restriction of political participation to members of

the established church.”

9

protection of individual religious liberty. Disestablish-

ment ensured that churches would not be funded

through the coercive power of the state, but through

the voluntary offerings of adherents, thus providing a

constraint on government and a measure of religious

liberty for individuals — to fund or refuse to fund reli-

gious institutions — that had long been denied.

When Virginia Baptist pastor John Leland re-

counted why Baptists so heartily supported the Revo-

lution, he said it “suited their political principles,

promised religious liberty, and a freedom from minis-

terial tax.” John Leland, The Virginia Chronicle (1790)

reprinted in The Writings of the late Elder John Leland

112 (Miss L.F. Greene ed., 1845). A leader of Massachu-

setts Baptists, Isaac Backus, complained of locales

that were blending the ministerial tax into a general

civil tax: “the civil charges of the town, and the minis-

ters salary are all blended in one tax ... so that our

brethren who would readily pay their civil tax, yet can-

not do it, without paying the ministers also!” Isaac

Backus, An Appeal to the Public for Religious Liberty

against the Oppressions of the Present Day (1773),

http://classicliberal.tripod.com/misc/appeal.html. For

colonial Baptists and other dissenters, government

support for chu: ches and clergy was a specific impetus

in the fight for religious liberty.

In writing new state and federal constitutions,

“evangelical dissenters insisted that these new consti-

tutions address issues of religious liberty. Immediately

in most states, eventually in all states, the established

10

churches were disestablished — deprived of govern-

ment sponsorship and deprived of tax support. The de-

tails varied from state to state, but disestablishment

was not the work of secular revolutionaries. It was

mostly the work of evangelical religious dissenters.”

Douglas Laycock, Church and State in the United

States: Competing Conceptions and Historic Changes,

13 Ind. J. Global Legal Stud. 503, 508 (2006).

James Madison wrote his “Memorial and Remon-

strance Against Religious Assessments” to oppose Pat-

rick Henry’s bill that would have required Virginians

to designate a portion of their civil tax for the support

of clergy, “or the providing places of divine worship, and

to none other use whatsoever.” “A Bill Establishing a

Provision for Teachers of the Christian Religion,”

reprinted in Flowers, Religious Freedom and the Su-

preme Court at 1130 (emphasis added). In the Memo-

rial, Madison echoed many of the concerns of the

religious dissenters, including “that it would coerce a

form of religious devotion in violation of conscience,”

“that a true religion did not need the support of law,”

and that permitting religious institutions to compete

with one another for scarce public resources would

“destroy that moderation and harmony which the

5 Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 141

(2011)

® Everson v. Bd. of Educ., 330 U.S. 1, 12 (1947).

11

forbearance of our laws to intermeddle with Religion,

has produced amongst its several sects.”

“In Madison’s view, government should not ‘force a

citizen to contribute three pence only of his property

for the support of any one establishment’” — a principle

that “does not depend on the amount of property con-

scripted for sectarian ends. Any such taking, even one

amounting to ‘three pence only,’ violates conscience.”

Winn, 563 U.S. at 141 (quoting Flast v. Cohen, 392 US.

83, 103 (quoting 2 Writings of James Madison 183, 186

(G. Hunt ed. 1901))).

Madison’s and the dissenters’ objections carried

the day: Henry’s bill was defeated, and the Virginia

General Assembly instead enacted Thomas Jefferson’s

“Bill for Establishing Religious Freedom,” which in its

very text repeated not only Madison’s admonitions

about protecting private conscience, but also his idea

that state support for religion “tends also to corrupt

the principles of that very religion it is meant to en-

courage, by bribing, with a monopoly of worldly hon-

ours and emoluments, those who will externally

profess and conform to it.” The enacted Virginia bill

’ James Madison, Memorial and Remonstrance para. 11,

quoted in Everson, 330 U.S. at 69 (Appendix to dissenting opinion

of Rutledge, J.).

® “A Bill for Establishing Religious Freedom,” reprinted in 2

Papers of Thomas Jefferson 546 (J. Boyd ed. 1950); see also Ever-

son, 330 U.S. at 53 (Rutledge, J., dissenting) (“The great condition

of religious liberty is that it be maintained free from sustenance,

as also from other interferences, by the state. For when it comes

to rest upon that secular foundation it vanishes with the rest-

ing.”).

12

thus included a provision that became the template for

so many state constitutional provisions, including Mis-

souri’s: “[N]o man shall be compelled to frequent or

support any religious worship, place, or ministry what-

soever.” “A Bill for Establishing Religious Freedom,”

reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd

ed. 1950); see also Locke, 540 U.S. at 722 n.6 (quoting

this provision).

Professor Laycock has thus well summarized the

fight over disestablishment: “The dominant issue in

the founding-era debate over disestablishment was

government financial support for churches. Churches

that received tax support did not want to give it up;

many citizens, and especially dissenters and the un-

churched, did not want to pay the taxes. Defenders of

the established churches proposed as a compromise

that dissenters be allowed to pay their church tax to

their own church, so that tax money would be equally

available to all denominations. But in the end, every

state rejected this compromise. The high profile debate

over tax support for churches has played a large role

in the development of American understandings of re-

ligious liberty.” Laycock, Church and State 13 Ind. J.

Global Legal Stud. at 508.

Whatever disputes exist about the historical

meaning of no establishment, there is little question

that avoiding tax support for churches was a central

concern of the Founding era. Whether modern Estab-

lishment Clause jurisprudence might allow a state to

include a church in a particular secular grant program

with appropriate safeguards to prevent government

13

funding of religious activity, it is not surprising that

Missouri or any other state would, as a matter of state

policy, choose not to fund churches.

B. Churches are quintessential religious

entities accorded special legal status to

protect their autonomy and religious

liberty.

The unique place that churches occupy in law is

not simply a relic of history. Their legal status reflects

their distinctive nature. The primary purpose of iden-

tifying as a church is to claim a religious identity and

purpose, and to engage in religious activities with oth-

ers.

Churches are the historic and typical vehicle for

communal religious activities, including assembling

for worship, religious education, and proselytization.

Every week, millions of Americans voluntarily attend

a house of worship, funded with the tithes and offer-

ings of voluntary adherents of the faith. The manner

in which a church expresses itself through doctrine,

tradition, practice, use of its facilities, and involvement

in activities that benefit those outside the faith com-

munity, varies widely.’ These differences reflect our

® Declining to tie a church’s tax exemption to the extent it

serves the larger community, this Court described this diversity

in church practices in Walz, 397 U.S. at 674: “Churches vary sub-

stantially in the scope of such services. ... The extent of social

services may vary, depending on whether the church serves an

urban or rural, a rich or poor constituency. To give emphasis to so

variable an aspect of the work of religious bodies would introduce

14

country’s religious liberty and diversity and the auton-

omy provided to churches by the Religion Clauses.*°

Church-owned and operated facilities are not

readily segregated between religious use and secular

use devoid of religious import." It is common for

an element of governmental evaluation and standards as to the

worth of particular social welfare programs, thus producing a

kind of continuing day-to-day relationship which the policy of

neutrality seeks to minimize.”

© This Court recently affirmed the broad autonomy of

churches to include a “ministerial exception” to most employment

laws in Hosanna-Tabor. The Court stated, “Both Religion Clauses

bar the government from interfering with the decision of a reli-

gious group to fire one of its ministers.” Hosanna-Tabor, 132 S. Ct.

at 702. This deference to churches was not to protect invidious

discrimination but to recognize the full legal freedom in employ-

ment of ministers as central to the faith and mission of the church

itself. Jd. at 707.

" Church facilities are in fact recognized in federal law as

deserving of special treatment. In describing the need for the Re-

ligious Land Use and Institutionalized Persons Act of 2000, 42

U.S.C. § 2000cc-5 (2012), the joint statement of Senator Orrin

Hatch and Senator Edward Kennedy asserted, “The right to as-

semble for worship is at the very core of the free exercise of reli-

gion. Churches and synagogues cannot function without a

physical space adequate to their needs and consistent with their

theological requirements. The right to build, buy, or rent such a

space is an indispensable adjunct of the core First Amendment

right to assemble for religious purposes.” 146 Cong. Rec. $7774

(daily ed., July 27, 2000) (joint statement Sen. Hatch and Sen.

Kennedy). Additionally, Congress had previously enhanced the

penalties for vandalizing or destroying religious real property in

the Church Arson Prevention Act of 1996. 18 U.S.C. § 247 (2012).

In 2011, a Texas man pled guilty to charges pursuant to this act

for “setting fire to a playground outside of a mosque.” “Texas Man

Pleads Guilty in Arson of Mosque Playground” Religious Freedom

15

churches to have facilities dedicated to the care and

education of children to facilitate worship for their par-

ents. It is also common that such facilities are used as

additional ministry opportunities beyond Sunday ser-

vices. The extent to which such a church ministry is

funded from the church offerings or through tuition

payments that may produce income for other church

activities and the extent to which the ministry is ex-

plicitly religious is a matter of church autonomy.

In this case, Petitioner is a church that uses its fa-

cilities to operate a ministry for the children of church

members, as well as other children in the community,

to teach a Christian worldview and spread the Gospel

of Jesus Christ. See Complaint {J 14-17. As the district

court held, “religious instruction is a central element

of the preschool and daycare offered through the

Learning Center, and there is nothing in the Com-

plaint to suggest that this instruction does not extend

to the playground.” Trinity Lutheran Church of Colum-

bia, Inc. v. Pauley, 976 F. Supp. 2d 1137, 1150 (W.D. Mo.

2013). It would be difficult, if not impossible, to provide

government funding for church property with ade-

quate safeguards to insulate that aid from religious

use.

Petitioner argues it should be eligible for a grant

because the State’s program is secular and because the

aid is for material that cannot be diverted to religious

in Focus 45 U.S. Dep’t of Just. C.R. Div. (2011), https:/Awww.jus-

tice.gov/crt/religious-freedom-focus-volume-45#4.

16

use. While it is true that scrap material is not inher-

ently religious, that fact does not defeat the State’s in-

terest or otherwise control the outcome of this case.

Many secular objects, such as bread, wine, and water,

take on religious significance in the context of a

church. Under Petitioner’s theory, however, there

would not even be an Establishment Clause question

if a state decided to fund construction of houses of wor-

ship, because building materials are not inherently re-

ligious. The issue is not whether the recycled rubber

replacement material is inherently religious, but

whether Missouri must fund an upgrade to a church

playground, with the accompanying federal constitu-

tional responsibility to provide safeguards against

state funding of religion.”

This Court in Amos recognized the threat to

church autonomy posed by judicial attempts to distin-

guish a church’s religious from its secular activities.

“(I]t is a significant burden on a religious organization

to require it, on pain of substantial liability, to predict

which of its activities a secular court will consider re-

ligious. The line is hardly a bright one, and an organi-

zation might understandably be concerned that a

judge would not understand its religious tenets and

sense of mission. Fear of potential liability might affect

the way an organization carried out what it understood

to be its religious mission.” Corp. of Presiding Bishop

of the Church of Jesus Christ of Latter-Day Saints v.

Amos, 483 U.S. 327, 336 (1987). For that reason, the

2 See infra Section I.C.

17

Amos court upheld the exemption for religious employ-

ers from Title VII's religious discrimination provision,

and rejected a plea to constitutionally require a nar-

rower, job-by-job analysis in place of that bright-

line exemption. Jd. at 344 (“A case-by-case analysis

for all activities ... would both produce excessive gov-

ernment entanglement with religion and create the

danger of chilling religious activity.”) (Brennan, J., con-

curring).

Here, the same reasoning applies and is even more

compelling. The religious employer in Amos was a gym-

nasium with a religious affiliation. Trinity Lutheran is

a house of worship, the quintessential pervasively reli-

gious institution. If a case-by-case analysis of a reli-

giously affiliated gymnasium produces excessive

government entanglement, then surely such scrutiny

of houses of worship raises even greater establishment

concerns. Distinguishing a church’s religious facilities

from its non-religious facilities to determine their eli-

gibility for taxpayer funds entangles state funding

agencies inappropriately in religious matters, and

compromises a church’s autonomy. Given those dan-

gers to religious liberty, Missouri should not be faulted

for implementing a bright-line rule that ensures com-

plete financial separation. The grant program, if ap-

plied to Petitioner, would pay for improvements to

church property used to advance the church’s ministry.

Surely the State is not required to provide such fund-

ing.

18

C. This Court’s Establishment Clause ju-

risprudence recognizes the unique sta-

tus of churches and the special dangers

associated with government funding of

churches.

This Court has never upheld a direct grant to

churches, much less required the State to provide such

funding. The Eighth Circuit was far too quick to a:

sume that Missouri’s scrap tire grant program, if

extended to churches, would satisfy the Federal Estab-

lishment Clause. In the Court’s most recent case in-

volving direct aid to religious institutions, Mitchell v.

Helms, 530 U.S. 793 (2000), Justice O’Connor’s control-

ling opinion warns of “the special dangers associated

with direct money grants to religious institutions.” Jd.

at 855 (O’Connor, J., joined by Breyer, J., concurring)

(upholding program of in-kind aid to religious schools,

among others, because it contained constitutionally

adequate safeguards against diversion to religious

use).'* Direct money grants, she notes, is a “form of aid

[that] falls precariously close to the original object of

the Establishment Clause’s prohibition.” Jd. at 856.

See also Rosenberger v. Rector & Visitors of the Univ. of

Va., 515 U.S. 819, 842, 844 (1995) (“we have recognized

special Establishment Clause dangers where the gov-

ernment makes direct money payments to sectarian

‘8 Because no opinion in Mitchell commanded a majority, the

concurring opinion of Justices O’Connor and Breyer is controlling,

because it is the narrowest opinion in support of the Court’s re-

sults. Marks v. United States, 430 U.S. 188, 193 (1977). Mitchell

involved provision of in-kind aid to schools, including religiously

affiliated schools, not funding for houses of worship.

19

institutions. ... It is, of course, true that if the State

pays a church’s bills it is subsidizing it, and we must

guard against this abuse.”).

This Court has treated churches, and other perva-

sively religious entities, with special sensitivity.

Whether constitutionally mandated or simply permis-

sive, such treatment aligns with the free exercise and

no establishment values embodied in the First Amend-

ment. Religious institutions, and churches in particu-

lar, have long been recognized as vehicles for religious

expression and practice with autonomy interests pro-

tected by the Religion Clauses. These entities receive

legal advantages, such as exemptions from certain em-

ployment laws to facilitate free exercise, to protect

against government interference with religious prac-

tice. Likewise, religious institutions may be subject to

exclusions from government funding, in part because

religion so pervades their purpose and functions that

any government aid risks government financing of re-

ligious experience. '*

Importantly, the Establishment Clause concern

that lurks in this case is unlike that in one involving

indirect financing by “vouchers,” where the Court may

find the funding of religious institutions is permissible

only as a result of genuinely independent private

choice, see Zelman v. Simmons-Harris, 536 U.S. 639

(2002); see also Locke, 540 U.S. at 719 (explaining that,

44 That the plurality opinion in Mitchell v. Helms raised ques-

tions about the “pervasively sectarian entities” category should

not interfere with the scope of state discretion to steer clear of

aiding houses of worship, the prototypical sectarian entity.

20

for this reason, the scholarship program at issue there

would not violate the Establishment Clause). Like-

wise, this case does not involve a question of access to

a speech forum open to a wide array of viewpoints. See

Rosenberger, 515 U.S. 819; Good News Club v. Milford

Cent. Sch., 533 U.S. 98 (2001); Widmar v. Vincent, 454

U.S. 263 (1981) (requiring equal treatment); Locke, 540

U.S. at 720 n.3 (challenged funding program “is not a

forum for speech”). Similarly, this Court’s decisions al-

lowing aid to religious institutions in other contexts,

such as social services, do not undercut the state’s in-

terest of not funding religious activities or certain reli-

gious institutions that do not separate their religious

and secular activities. See Bowen v. Kendrick, 487 U.S.

589, 621 (1988) (remanding case involving funding of

social services provided by religious organizations to

ensure no aid to pervasively sectarian entities or dis-

tinctively religious activities).

Nor does the aid in question resemble police and

fire protection, which is not only not a form of direct

monetary aid, but is also an entitlement for everyone in

the community. See Everson, 330 U.S. at 17-18. Here,

Missouri state administrators, not private parties,

make decisions about the provision of cash subsidies to

a select and very limited group of recipients — only

fourteen entities in the year in question, out of the

forty-four that applied. In this regard, the instant case

is even stronger for the state than in Locke, where the

state excluded students majoring in devotional theol-

ogy from the Promise Scholarship Program, which was

available to every student who otherwise met the

21

grade and income requirements. The program was not

a lottery to which qualifying students would apply and

hope to win a scholarship. Missouri’s narrow incentive

program for a small number of recipients reflects its

funding priorities and is consistent with its long-stand-

ing religious liberty policy. Because the Missouri pro-

gram is highly limited and discretionary, the state’s

constitutional defense of it is even easier than was the

case in Locke.

This Court need not and should not opine on

whether and under what rare circumstances and con-

ditions the Establishment Clause might allow a state

to convey funds directly to a church. Even assuming

arguendo that this grant program satisfied the Estab-

lishment Clause, Missouri does not violate the Consti-

tution by implementing its own reasonable, bright-line

rule, incorporated in three long-standing provisions of

the Missouri Constitution — likewise found in the con-

stitutions of most of the states in the Union — that the

state may not make direct payments to a church. If the

Court holds that Missouri may continue to implement

this categorical, bright-line rule, there will be no need

to decide what safeguards are necessary to satisfy the

Establishment Clause.

22

Il. MISSOURIPS CONSTITUTIONAL PROHIBI-

TION ON DIRECT FUNDING OF CHURCHES

PROTECTS RELIGIOUS LIBERTY AND

CANNOT BE DISMISSED AS RELIGIOUS

STATUS DISCRIMINATION

Missouri’s bright-line rule prohibiting the direct

funding of churches is well-founded and within the

State’s discretion to separate the institutions of gov-

ernment and religion beyond what the Establishment

Clause requires.

A. Federalism allows states to maintain

an independence of religion and gov-

ernment beyond what the Establish-

ment Clause requires.

In our federalist system, federal and state laws

sometimes provide overlapping protections. While

states cannot offer less protection than the federal gov-

ernment, they can, and often do, offer greater protec-

tion. See, e.g., State v. Schmid, 423 A.2d 615, 626 (N.2J.

1980) (noting that the New Jersey state constitutional

free speech and assembly protections are “more sweep-

ing in scope than the language of the First Amend-

ment”; People v. Scott, 593 N.E.2d 1328, 1334 (NY.

1992) (“We believe that under the law of this State the

citizens are entitled to more protection [than the

Fourth Amendment provides].”); Goodridge v. Dep’t of

Pub. Health, 798 N.E.2d 941, 948-49 (Mass. 2003) (“The

Massachusetts Constitution is, if anything, more pro-

tective of individual liberty and equality than the Fed-

eral Constitution; it may demand broader protection

23

for fundamental rights; and it is less tolerant of gov-

ernment intrusion into the protected spheres of private

life.”).

As Chief Justice Rehnquist’s majority opinion in

Locke demonstrates, that understanding of consti ‘u-

tional protections — as a floor beneath and not a ceiling

above constitutional concerns — applies with full force

in the Establishment Clause context. See Locke, 540

U.S. at 722 (“the differently worded Washington Con-

stitution draws a more stringent line than that drawn

by the United States Constitution.”). The desire to

avoid establishment, the Court reasoned, is a “historic

and substantial state interest.” Jd. at 721. Because the

Establishment Clause is restrained by the Free Exer-

cise Clause, and vice versa, potential expansion of each

above the floor of federal rights is inherently and

uniquely limited. The “pairing presents a constitu-

tional strategy that appears nowhere else in the Bill of

Rights. .. . [They] create both a floor under and a ceil-

ing over the formulation of religion policy by the

states.” Ira C. Lupu and Robert Tuttle, Federalism and

Faith, 56 Emory L.J. 19, 21-22 (2006).

This Court has recognized that there is room for

state policy between what the Establishment Clause

prohibits and the Free Exercise Clause demands. Walz,

397 U.S. at 669. Though certainly not without limits,

this “play in the joints” allows states to pursue reli-

gious liberty interests beyond what is required by the

First Amendment. Jd. Otherwise, every state decision

touching religious institutions would raise a control-

ling federal constitutional question. Just as there is a

24

zone of permissive accommodation that the govern-

ment may respect beyond what the Free Exercise

Clause requires, there is a zone of permissive separa-

tion to maintain the independence of religion and gov-

ernment beyond what the Establishment Clause

requires.

By affording state and local governments the lati-

tude to resolve church-state issues between the Reli-

gion Clauses, “federal courts achieve some of the

desirable effects of originalism — namely political

accountability and judicial consistency.” Jesse R. Mer-

riam, Finding a Ceiling in a Circular Room: Locke v.

Davey, Religious Neutrality, and Federalism, 16 Temp.

Pol. & C.R. L. Rev. 103, 129 (2007). Refusing states this

latitude on borderline church-state issues would col-

lapse the “play in the joints” between the Religion

Clauses this Court has wisely and repeatedly recog-

nized. Locke, 540 U.S. at 718 (quoting Walz, 397 US. at

669).

B. Missouri’s historic and consistent policy

is well founded and cannot be dismissed

as religious status discrimination.

Missouri’s distinct legal treatment of churches

provides no basis for constitutional suspicion or

charges of religious animus. Missouri and more than

half of the states have long-standing constitutional

provisions that recognize the unique nature of reli-

gious institutions, protect against state funding of re-

ligious experience, and explicitly prohibit the funding

25

of churches. Petitioner’s claim that the Constitution re-

quires direct funding of church facilities would upend

church-state law and could have far-reaching negative

consequences for religious liberty.

Long before U.S. Senator James Blaine introduced

his constitutional amendment to prohibit government

funding of sectarian schools in order to support public

education, the question of taxes collected by the gov-

ernment being given directly to churches had been set-

tled. “[T]here were widespread objections to tax

support for churches.... This opposition forced the

Framers’ generation to think about the tax issue. Once

they thought about it, they concluded that any form of

tax support for churches violated religious liberty.”

Douglas Laycock, “Nonpreferential” Aid to Religion: A

False Claim about Original Intent, 27 Wm. & Mary L.

Rev. 875, 917 (1986).

Whatever disputes exist about the historical

meaning of no establishment, there is little question

that avoiding tax support for churches was a central

concern of the Founding era. Whether modern Estab-

lishment Clause jurisprudence might allow a state to

include a church in a secular in-kind grant program

with appropriate safeguards to prevent government

funding of religion,” it is not surprising that Missouri

or any other state would choose not to fund churches.

1®© See supra Section I.C. discussing Mitchell v. Helms.

26

Missouri’s constitutional history provides strong

support for the “no-aid” principle as an essential reli-

gious liberty protection. It is utterly ahistorical and

anti-originalist to re-frame that principle as harmful

or hostile to religion. The state constitution includes

three provisions that categorically prohibit the State

from providing money to churches directly: article I,

sections 6 and 7, and article IX, section 8.'° These con-

stitutional provisions have a long and distinguished

history, spanning almost two centuries and several dif-

ferent iterations of the state constitution.'’ They are

© Mo. Const. art. I, § 6: “That no person can be compelled to

erect, support or attend any place or system of worship, or to

maintain or support any priest, minister, preacher or teacher of

any sect, church, creed or denomination of religion; but if any per-

son shall voluntarily make a contract for any such object, he shall

be held to the performance of the same.” Mo. Const. art. I, § 7:

“That no money shall ever be taken from the public treasury, di-

rectly 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.” Mo. Const. art. IX, § 8:

“Neither the general assembly, nor any county, city, town, town-

ship, school district or other municipal corporation, shall ever

make an appropriation or pay from any public fund whatever, an-

ything in aid of any religious creed, church or sectarian purpose,

or to help to support or sustain any private or public school, acad-

emy, seminary, college, university, or other institution of learning

controlled by any religious creed, church or sectarian denomina-

tion whatever; nor shall any grant or donation of personal prop-

erty or real estate ever be made by the state, or any county, city,

town, or other municipal corporation, for any religious creed,

church, or sectarian purpose whatever.”

1” All four Missouri constitutions have had one or more no-

aid provisions. Once introduced, the provisions remained in each

27

consistent with similar categorical prohibitions in the

constitutions of at least thirty-nine of the fifty states

of the Union.** These bright-line, prophylactic rules

successive constitution without material change. Article I, section

six’s “no compel” provision was first introduced as article XIII,

section 4 of the 1820 constitution. 4 The Federal and State Con-

stitutions, Colonial Charters, and Other Organic Laws of the

States, Territories, and Colonies Now or Heretofore Forming the

United States of America 2163, 2192, 2230 (Francis Newton

Thorpe ed., 1909) (hereinafter “Thorpe”). Article IX, section 8 first

appeared in a series of amendments to the 1865 constitution

which were ratified on November 8, 1870. 4 Thorpe at 2228, 2264.

This provision strengthened Missouri’s no-aid commitment by

specifying that state and local government bodies would not

“make any appropriation, or pay, from any public fund whatever,

anything in aid of any creed, church, or sectarian purpose.” Jd. at

2228. Article I, section 7 first appeared as article II, section 7 of

the 1875 constitution specifying that public funds will not be paid

directly or indirectly to “any church, sect, or denomination of reli-

gion.” 4 Thorpe at 2230.

16 Thirty-nine states have one or more constitutional provi-

sions effectively prohibiting direct payments to churches. Thir-

teen states, including Missouri, have both a provision providing

that “no man shall be compelled to support a church,” or words to

that effect, and one or more provisions saying “no money shall be

spent on churches,” or words to that effect: Colorado, Idaho, Ili-

nois, Indiana, Michigan, Minnesota, Missouri, New Mexico, Penn-

sylvania, South Dakota, Texas, Virginia, and Wisconsin. Fourteen

states have only the former “no man compelled” but not the latter:

Alabama, Arkansas, Connecticut, Delaware, Iowa, Kentucky, Mar-

yland, Nebraska, New Jersey, Ohio, Rhode Island, Tennessee, Ver-

mont, and West Virginia. Twelve states have only the latter (“no

funds”), but not the former: Arizona, California, Florida, Georgia,

Massachusetts, Montana, New Hampshire, Oklahoma, Oregon,

Utah, Washington, and Wyoming. See Appendix for the text of

each of these constitutional provisions. Eleven states have no such

provision regarding financial support for churches or places of

worship: Alaska, Hawaii, Kansas, Louisiana, Maine, Mississippi,

28

reflect fundamental concerns — about protecting tax-

payer conscience, preserving church autonomy, and

avoiding religious conflict in the legislative and admin-

istrative process — that animated Madison’s Memorial

and Remonstrance, the 1779 enactment of the Virginia

“Bill for Establishing Religious Freedom,” and the Es-

tablishment Clause of the Federal Constitution, which

Madison himself drafted. A decision by this Court re-

quiring Missouri to directly fund churches, despice its

long constitutional tradition to the contrary, would un-

settle the state constitutional law of every state that

has a comparable funding prohibition.

When Missouri entered the union as a state, in

1821, its first constitution provided 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.” By including this provision,

Nevada, New York, North Carolina, North Dakota, and South Car-

olina.

'8 Mo. Const. of 1820 art. XIII, § 4, quoted in 4 Thorpe 2163.

The provision read in full: “That all men have a natural and inde-

feasible right to worship Almighty God according to the dictates

of their own consciences; that no man can be compelled to erect,

support or attend any place of worship, or to maintain any minis-

ter of the gospel or teacher of religion; that no human authority

can control or interfere with the rights of conscience; that no

person can ever be hurt, molested or restrained in his religious

professions or sentiments, if he do not disturb others in their reli-

gious worship.” Congress required Missouri to make an amend-

ment to its 1820 Constitution as a condition of entry into the

union, id. at 2148-49, but did not insist upon any such change to

the religion clauses.

29

Missouri was not breaking new ground. A similar pro-

hibition appeared in Virginia’s landmark “Bill for Es-

tablishing Religious Freedom” in 1779, and at least

thirteen of the twenty-three states that preceded Mis-

souri into the Union included such a prohibition in

their constitutions.” This provision, guaranteeing that

no one will be compelled to support any place of wor-

ship, has been a part of Missouri’s Constitution ever

since, without material change; it appears today as ar-

ticle I, section 6.

From its first articulation of its own no estab-

lishment interests, Missouri protected the religious

liberty of its citizens by refusing to fund both church

buildings (erect or support) and church leaders or

teachers (maintain). Through each successive iteration

approved by Missourians, the state constitution main-

tained its prohibition against funding churches includ-

ing in the current version, enacted in 1945, with three

reinforcing no-aid provisions.

2” See Ala. Const. of 1819, art. I, § 3, quoted in 1 Thorpe at 97;

Conn. Const. of 1818, art. VII, § 1, quoted in 1 Thorpe at 544-45;

Del. Const. of 1792, art. I, § 1, quoted in 1 Thorpe at 568; Ga.

Const. of 1798, art. IV, § 10, quoted in 2 Thorpe at 800-01; Ill.

Const. of 1818, art. VIII, sec. 3, quoted in 2 Thorpe at 981; Ind.

Const. of 1816, art. I, § 3, quoted in 2 Thorpe at 1058; Ky. Const.

of 1792, art. XII, § 3, quoted in 3 Thorpe at 1274; N.J. Const. of

1776, art. XVIII, quoted in 5 Thorpe at 2597; N.C. Const. of 1776,

art. XXXIV, quoted in 5 Thorpe at 2793; Ohio Const. of 1802, art.

VIL, § 3, quoted in 5 Thorpe at 2910; Pa. Const. of 1776, art. II,

quoted in 5 Thorpe at 3082; Tenn. Const. of 1796, art. XI, § 3,

quoted in 6 Thorpe at 3422; Vt. Const. of 1793, ch. I, art. III, quoted

in 6 Thorpe at 3762.

30

Missouri state courts have consistently inter-

preted these no-aid clauses together as a series of

constitutional provisions designed to advance “the

principle which is of the warp and woof of democracy,

namely, [that] the people must enjoy religious freedom

and religious equality,” a principle that “has stood out

as a guiding star in the growth and development of our

form of government and has contributed to its solidar-

ity. ... Because of it, devotion to religious beliefs ac-

cording to the dictates only of one’s conscience without

molestation or forcible direction became possible, thus

permitting an unhampered growth of religious convic-

tion of any sort and of every denomination.” Notably,

these no-aid provisions cannot be dismissed as simply

prohibiting preferential funding of churches. A sepa-

rate “no preference” provision introduced in the 1865

21 Harfst v. Hoegen, 163 S.W.2d 609, 611-12 (Mo. 1942).

Harfst was a case involving the funding of religious schools, ra-

ther than churches. The Missouri Supreme Court held that the

state constitution forbade such funding despite the acknowledged

significant secular value of the education offered in such schools:

“(W]e recognize that the members of these noble teaching orders

are inspired only by the most unselfish and highest motives; that

parochial education is an embodiment of one of the highest ideals

that man may enjoy. The Supreme Court of the United States

found that parochial education has been ‘long regarded as useful

and meritorious.’ In the instant case it is admitted by all parties

that the Sisters are fully qualified according to the standards set

by the superintendent of instruction as teachers of a public school.

We know of the great educational institutions conducted by the

Jesuits and other Catholic Orders and of their high standards of

excellence, St. Louis University being a leader among them.”

Harfst, 163 S.W.2d at 614 (quoting Pierce v. Soc’y of Sisters, 268

U.S. 510, 534 (1925)).

31

Constitution states: “No preference can ever be given,

by law, to any church, sect, or mode of worship.”””

Neither state history nor the consistent interpre-

tation of these no-aid clauses support the argument

that these provisions were the product of any anti-

Catholic animus. The no-funding rule was a well-

established part of Missouri’s constitution — and of the

constitutions of many other states — years before Sen-

ator Blaine proposed his (unenacted) federal constitu-

tional amendment. Moreover, the no-funding rule has

always applied to foreclose direct subsidies to all of the

churches in Missouri, most of which were (and are) at-

tended by non-Catholic Missourians. Missouri’s three

constitutional no-aid clauses complement one another,

distinctly covering aid to churches separate and apart

from aid to religious schools or to clergy.

C. Missouri’s implementation of its grant

program, consistent with its consti-

tutional ban on direct funding of

churches, is a valid exercise of federal-

ism well within a narrow reading of

Locke v. Davey.

Missouri has implemented a competitive grant

program to reimburse a few “qualifying organizations

for the purchase of recycled tires to resurface play-

grounds, a beneficial reuse of this solid waste.” Trinity

22 Mo. Const. of 1865 art. I, § 11, quoted in 4 Thorpe 2192.

This no preference provision remains in the current constitution

within article I, section 7.

32

Lutheran, 788 F.3d at 779. Pursuant to the no-aid pro-

visions in the state constitution, a departmental policy

prohibits organizations owned or controlled by a

church from participating in the program. The prohibi-

tion prevents the state from becoming entangled in re-

ligion. It avoids the state having to decide or verify

what part of a church’s facilities are sufficiently secu-

lar and distinct from its religious core or explicit reli-

gious activities to qualify for government funding. This

policy fits squarely within the zone of permissive sep-

aration prohibiting the State from financing a church’s

capital improvement project. If the provision were not

in place, the Federal Establishment Clause would, at a

minimum, require Missouri to design the program to

include safeguards against state funding of religious

activity,” thus increasing the opportunity for regula-

tory interference with how a church wants to use its

property to advance its mission. The State is entitled

to avoid that kind of entanglement with religion.

As the Eighth Circuit held, Missouri’s interest in

not funding churches is just as historic and substantial

as a state’s interest in not funding ministerial training.

Petitioner's attempts to reduce Locke’s precedential

value to the context of such training while creating a

federal mandate for state grant programs to include

funding for church facilities, should be explicitly

*8 Mitchell, 530 U.S. at 860-67 (upholding program of in-kind

aid to religious schools, among others, because it contained con-

stitutionally adequate safeguards against diversion to religious

use) (O’Connor, J., joined by Breyer, J., concurring).

33

rejected. Whether the asserted secular interest is fund-

ing higher education or safer playgrounds, the State is

entitled to maintain and implement prophylactic rules

to avoid funding religion or becoming entangled in it.

Petitioner’s focus on the scrap material as inherently

secular ignores the unique qualities of churches, and

Missouri's substantial interest in not funding them.

In Locke, this Court upheld a substantially similar

state constitutional provision as fitting within federal-

ism’s zone of permissive separation, even though the

Court recognized that Washington’s program would

not violate the Federal Establishment Clause. The

Court recognized that the Promise Scholarship Pro-

gram was a voucher program where the “link between

government funds and religious training is broken by

the independent and private choice of recipients.”

Locke, 540 U.S. at 719. Missouri’s scrap tire grant pro-

gram involves direct funding, thereby more sharply

implicating the State’s interest in avoiding the funding

of religion in a context in which federal constitutional

limits may be uncertain. This too makes the instant

case even easier than Locke for the state to justify its

funding limitation.

Petitioner’s attempt to cast Missouri’s more ex-

plicit ban on state funding of religion as unconsti-

tutional discrimination and to limit Chief Justice

Rehnquist’s opinion in Locke, are deeply unpersuasive.

Many of the cases relied upon by Petitioner — particu-

larly McDaniel v. Paty, 435 U.S. 618 (1978) and Church

of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)

— were properly distinguished in Locke as involving

34

coercive limitations on religious freedom. These deci-

sions provide even less support for Petitioner’s claim

than they did for that of Joshua Davey. This Court’s

decision in Locke firmly supports Missouri’s denial of a

direct grant to a church to improve its property.

As Chief Justice Rehnquist wrote for the Court in

Locke, “(T]he State’s disfavor of religion (if it can be

called that) is of a far milder kind. It imposes neither

criminal nor civil sanctions on any type of religious ser-

vice or rite. It does not deny to ministers the right to

participate in the political affairs of the community. . . .

The State has merely chosen not to fund a distinct cat-

egory of instruction.” Jd. at 720-21 (citations omitted).

In this case, Missouri certainly does not prevent the

Trinity Lutheran Church from building, improving, or

operating its facilities consistent with its religious call-

ing. Nor does it prevent the Church from having a play-

ground or a preschool, and operating them consistently

with its ministry priorities and community outreach

efforts. Missouri is simply refusing to fund a capital

improvement project for the Church, consistent with

its three bright-line constitutional provisions, which

are similar to provisions found in most other states’

constitutions as well. It would profoundly upend our

constitutional history, state and federal, to require

Missouri to fund the improvement of church property.

+

35

CONCLUSION

The judgment below should be affirmed.

Respectfully submitted,

K. HOLLYN HOLLMAN

Counsel of Record

JENNIFER L. HAWKS

BAPTIST JOINT COMMITTEE

FOR RELIGIOUS LIBERTY

200 Maryland Ave., N.E.

Washington, D.C. 20002

202-544-4226

bjc@bjconline.org