Trinity Lutheran Church of Columbia, Inc. v. Comer

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in part.¶verify

Missouri’s law bars Trinity Lutheran from participating in a public benefits program only because it is a church. I agree this violates the First Amendment and I am pleased to join nearly all of the Court’s opinion. I offer only two modest qualifications.¶verify

First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante , at 12. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him). See Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261, 296 (1990) (Scalia, J., dissenting). Often enough the same facts can be described both ways.¶verify

Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 877 (1990). And this Court has long explained that government may not “devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 547 (1993). Generally the government may not force people to choose between participation in a public program and their right to free exercise of religion. See Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707, 716 (1981); Everson v. Board of Ed. of Ewing , 330 U. S. 1, 16 (1947). I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.¶verify

For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey , 540 U. S. 712 (2004). See ante , at 12. In that case, this Court upheld a funding restriction barring a student from using a scholarship to pursue a degree in devotional theology. But can it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here. Ante , at 13.¶verify

Second and for similar reasons, I am unable to join the footnoted observation, ante , at 14, n. 3, that “[t]his case involves express discrimination based on religious identity with respect to playground resurfacing.” Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1, 25 (2004) (Rehnquist, C. J., concurring in judgment). And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.¶verify