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Evan Farrar
4 May 2018
Eroding the Wall of Separation: An Assessment of Legal Precedent and Trinity Lutheran
Essential Question: How has the Supreme Court treated church-state issues since 1947, and to
what extent does the recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer
The separation of church and state lies at the heart of the American democratic
experiment. When the founders declared in the First Amendment that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof,” they laid the
cornerstone of church-state relations in the new American republic (U.S. Const. amend. I).
However, they also posed a question that the Supreme Court has spent decades trying to answer,
one concerning the balance between ensuring free exercise of religion and maintaining a secular
government. Since 1947, Supreme Court jurisprudence on the Religion Clauses of the
Constitution has shifted, as new cases shed light on different aspects of this fragile balance. As
the legal minutiae of church-state relations pile up, so does the weight of the Supreme Court’s
input, as seen in 2017, when the Supreme Court decided Trinity Lutheran Church of Columbia,
Inc. v. Comer. Despite the Court’s wavering on vital aspects of church-state separation since
1947, and the limited precedent set by the Court in Trinity Lutheran, the principles espoused in
the recent decision in this case represent a clear and present threat to the foundations of
American secular government, and thoroughly undermine the wall of separation the founders
The separation of church and state ensures that the government is not engaged in any
activity that would compromise its constitutional commitment to secularism. The requirement of
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church-state separation has its origins in the U.S. Constitution. References to religion in the
Constitution appear most notably in the First Amendment, but also in Article VI, Sec. 3, which
forbids the use of religious tests to assess candidates for public office. The First Amendment
mandates in its Establishment and Free Exercise Clauses that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof” (U.S. Const.
amend. I). The third section of Article VI of the Constitution requires that “[a] religious Test
shall [never] be required as a Qualification to any Office or public Trust under the United States”
(U.S. Const. art. VI, sec. 3). Despite the seemingly straightforward nature of these obligations,
the Supreme Court has toiled for more than a century over how these clauses—in particular, the
Free Exercise and Establishment Clauses—should be interpreted. However, there is some clarity
amidst the mess of legal jargon in the Supreme Court archives: although the Constitution
mentions religion relatively few times, the Religion Clauses demonstrate a commitment to a
secular federal government. The framers of the Constitution aimed to prevent the conflation of
church and state, as they believed that it would lead churches to be inclined to align themselves
with government interests, thus undermining actual religious doctrine (Katskee et al.).
Accordingly, the debate over the nature of church-state separation is rooted in the assumption
that American government is, and ought to be, secular. States have thus extended their
relationships with religious entities. The Missouri state constitution, for example, says explicitly:
“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” (Missouri Const. of 1875 art. II, sec. 6). Herein lies the controversy of
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The first of a long series of key Establishment Clause cases was presented to the Supreme
Court in 1947. Everson v. Board of Education (1947) signified a major shift in Supreme Court
between church and state, which was subsequently reaffirmed in McCollum v. Board of
Education (1948). The Court quickly pivoted away from these strong assertions in Zorach v.
Clauson (1952), but, in general, Everson marked an irrevocable shift in Supreme Court
Prior to Everson, the Supreme Court embraced religion as a crucial societal institution
and thus a vital component of American government. For example, the Court in Church of the
Holy Trinity v. United States (1892) stated that the U.S. is a “religious nation” and thus “no
purpose of action against religion can be imputed to any legislation.” In Everson, though, the
majority stipulated that the publicly funded busing of parochial school students was in the
interest of “general welfare”; however, a “high and impregnable” wall of separation was needed
to keep in line with the First Amendment, one that was applied equally to all religious
institutions (Cour). Moreover, indirectly benefiting religious entities was acceptable insofar as
general welfare was the top priority, but direct subsidization of religious activity was declared
of the fact that the Court drew a line in the sand, declaring that without church-state separation,
the secular commitment that the Constitution mandates would be left unfulfilled. Directly after
Everson was the case McCollum v. Board of Education (1948), a more high-profile yet less
legally significant case that affirmed the Court’s commitment to the “high and impregnable” wall
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of separation, once again in defiance of such prior rulings as the decision in Church of the Holy
Trinity. The Vinson Court in McCollum declared that religious instruction on school property
inherently endangered the separation of church and state, as it aided religion (Cour). Moreover,
McCollum can be interpreted as reinforcing the Court’s assertions in Everson, affirming that the
Constitution required a wall of separation. However, the Court pivoted away from this line in
Zorach v. Clauson (1952), where they considered a case similar to that of McCollum—the
teaching of religion to public school students, though outside of public school campuses—and
decided to allow subsidized religious instruction in some cases. In the majority opinion, Justice
Douglas argued that church-state separation must be “unequivocal”; however, “we are a religious
people whose institutions presuppose a Supreme Being” (Zorach v. Clauson). Justice Douglas’s
nation such as the U.S. Although this concession could be seen as a reversal of Everson and the
idea of a “high and impregnable” wall of separation, Douglas maintained that church-state
separation is necessary; thus, the mandate of a wall of separation remained relatively intact post-
Everson.
Nevertheless, the slight opposition between the principles espoused in Everson and
Zorach warranted further review of Supreme Court jurisprudence on church-state issues, leading
to a conflict spanning several decades between those who claimed that the government should
interact with religious entities, though neutrally (neutrality), and others who said that the wall of
separation would be undermined by any church-state interactions (no-aid). The root cause of this
conflict was Everson, which mandated a wall of separation without specifying what the nature of
church-state relations must be in order to maintain it. However, Everson’s assertion of neutrality
allowed for church-state interaction by facilitating the transport of religious students to religious
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schools (Welton). It was the modern welfare state that exacerbated this conflict; religious entities
relied (and still do rely) on the government for essential services instead of operating
independently. Moreover, the trivial issue of private school student transportation morphed into a
broader discussion of how the government should go about maintaining the wall of separation in
The Supreme Court juggled these competing legal interests, embracing more of a no-aid
approach in Lemon v. Kurtzman (1971), while pivoting toward neutrality in the early 1980s with
such cases as Marsh v. Chambers (1983). Lemon established a tripartite test for church-state
interaction. The test posited that a government interaction with a religious entity, in order to
maintain constitutionality, requires secular purpose. Secondly, state action needs neither to
advance nor inhibit religious practice. Lastly, the test mandated that state action must not
excessively entangle the interests of the church and the state (L.S.W.). This decision embodied
the climax of the no-aid principle, as the Lemon test served to severely restrict church-state
interaction. The ripples of such an impactful decision are felt even today; in 2017, the Fourth
Circuit Court of Appeals cited the Lemon test when blocking President Donald Trump’s
Executive Order 13780, which placed severe limits on entry to the United States for travelers
from particular countries. The Court argued that the Executive Order was likely motivated by
anti-Muslim sentiment, and thus intended to inhibit the practice of Islam in the U.S.
(International Refugee Assistance Project v. Trump). Some years after Lemon, though, the Court
decided in McDaniel v. Paty (1978) that Article 1 §9 of the Tennessee Constitution, which
the First and Fourteenth Amendments’ guarantee to a right to free exercise of religion (McDaniel
v. Paty). The Court’s decision in this case contradicted the spirit of the Lemon test, as it allowed
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for a certain level of entanglement between the religious entities represented by these ministers
and the state government of Tennessee. The secular purpose prong of the Lemon test was limited
in Marsh v. Chambers (1983), where it was ruled that Nebraska could pay a chaplain to lead
prayers at the opening of legislative sessions (L.S.W.). The Court in Marsh felt that the payment
did not advance any particular religion, as legislators did not feel the prayer discouraged any
other form of religious belief (Marsh v. Chambers). Thus, the Lemon test lost its weight, and the
attitude of the Court shifted to the neutrality side of the debate. Moreover, Marsh and McDaniel
were truly the last cases where the Court sought to distance itself from the principle of no-aid;
jurisprudence had irrevocably turned against the Lemon test, and the Court had clearly chosen to
accordance with circa-1980 decisions, but this mandate of neutrality has become much more
nuanced and convoluted. For example, the distinctions between such cases as Lukumi Babalu
Aye v. City of Hialeah (1993) and Locke v. Davey (2004) prove that the Supreme Court has
recently established more complex notions of what constitutes a violation of the Religion
Clauses. In Lukumi the Court struck down a town ordinance in Hialeah, Florida, prohibiting
animal sacrifice, as the ordinance specifically targeted members of the Church of Lukumi Babalu
Aye; meanwhile, the Court in Locke ruled that Washington’s Promise Scholarship, used for
academically qualified students below a certain income threshold to finance a college education
in anything except devotional theology, was constitutional. The Court established several
nuances of neutrality in deciding these two cases, including the extent of historical precedent in
Locke and animus toward religious practice in Lukumi (Welton). Essentially, in such nuanced
decisions as Locke and Lukumi, the Court established rules and boundaries governing how all
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levels of American government could protect against establishment while enhancing free
exercise, which the Court referred to as the “play in the joints” between the Free Exercise and
that dominated the Court’s decision-making into the millennium, though it served to give the
In the 2017 case Trinity Lutheran Church of Columbia, Inc. v. Comer, the debate over the
very nature of church-state relations, a discussion complicated by the jurisprudence of the Court
in Locke and Lukumi, came to a head. Trinity Lutheran concerned a Missouri church which
applied for a grant via the Missouri Scrap Tire Program, and was rejected by the state for being
religiously affiliated. Trinity Lutheran’s application was denied by the state as per Article II, §6
of the Missouri Constitution, which concerns the use of public money to subsidize religious
activity. Consequently, the destination of the public funds was the ultimate concern for some of
the justices; Justice Sotomayor argued that the church’s learning center, which would have
benefited from the public funds, is clearly religious in nature and thus Missouri’s decision was
justified. The religious nature of the learning center, Justice Sotomayor argued, was evidenced
by the learning center’s adherence to the church’s mission and its location on church property
(Trinity Lutheran Church of Columbia, Inc. v. Comer). Nevertheless, the Court decided in favor
of Trinity Lutheran, alleging that Missouri’s application of Article II, §6 of their state
Free Exercise Clause. The majority’s prevailing argument supported the church’s right to access
public funds as secular organizations do, without having to deemphasize their religious nature, as
they posited that the church would bear the unfair burden of having to appear secular if they
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really wanted to compete for funds by Missouri’s standards (Trinity Lutheran Church of
The Court in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) rejected much
of the jurisprudence of Locke and Lukumi, thus undermining the requirement of government
organizations—religious and secular—in competition for public funds. This pivot away from
Locke, for example, manifests itself in the fundamental discrepancies between the church’s
argument and the Court’s majority opinion in Locke. The petitioner in Trinity Lutheran argued
that Missouri sanctioned the church’s religious practice (Balikian et al.). However, Locke
explicitly declared that the funding of religious organizations via taxpayers is a “hallmark of
established religion,” an argument which the amici curiae utilized to the fullest extent in Trinity
Lutheran (Katskee et al.). Furthermore, the Court in Trinity Lutheran expressed very different
attitudes toward the funding of religious organizations as it relates to government neutrality; the
church, with which the Court sided, argued that denying it public funding is unconstitutional,
while the Court in Locke had concluded that directly funding religious institutions is
unconstitutional. In fact, it was the respondent, representing the state of Missouri, that stayed
consistent with Court jurisprudence in Locke in their arguments. Primary arguments in favor of
the respondent, Comer, reveal a consensus that the “play in the joints” between the Free Exercise
Clause and the Establishment Clause, on which the Court has based its jurisprudence in the past,
makes it necessary for the government to treat churches differently. The amici curiae that filed
briefs in favor of Comer argued that, as set out in Locke, this “play in the joints” between the
Free Exercise and Establishment Clauses allows for prioritization of both free exercise of
religion and anti-establishment interests beyond the limitations of their respective clauses. They
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said that inherent in allowing room for governments to decide what establishes religion and what
does not is the assumption that governments can, and should, treat churches differently (Katskee
et al.). This is fully consistent with the earlier jurisprudence of the Court, given that it permits the
state to establish neutrality and go above and beyond to ensure free exercise while maintaining
antiestablishment. Also, perhaps the most important point in the respondent’s case was the nature
of the petitioner’s interpretation of the Free Exercise Clause; as not only does the precedent set
by such cases as Locke allow for churches to be treated differently (although many have argued
that this is limited to the case of clerical training programs, as considered in Locke), but no
petitioner has ever successfully challenged this principle using the Free Exercise Clause. As the
amici curiae in favor of the respondent argued, some cases have involved the mandated inclusion
of religious organizations in public funding programs, but none justified by the Free Exercise
Clause (Katskee et al.). All these funding programs, such as the Washington Promise Scholarship
considered in Locke, have been essentially neutral and have not disrupted the right to “play in the
joints” granted to states. On the contrary, the decision in Trinity Lutheran fundamentally
contradicts these principles, thus undermining the strength of that ruling when considered side-
Thus, more than anything, Trinity Lutheran is a pivot away from rigid government
neutrality and the “play in the joints” set out in Locke, though it is important to note that
Trinity Lutheran damages the “play in the joints” between antiestablishment interests and free
exercise by presupposing that churches ought not to be treated differently under the law. As
Justice Sotomayor noted in her dissenting opinion, “play in the joints” allows for the recognition
that churches are entities which have special status in terms of constitutional law, and the
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exclusion of churches from suitable laws (e.g. church tax exemption) is acceptable. The state is
unable to participate in this “play in the joints” if it is required to include churches as equal
entities in competition for public funds (Trinity Lutheran Church of Columbia Inc. v. Comer).
Moreover, the Court essentially decided to forge a new third path, separate from both the
principles of neutrality and no-aid, where churches ought to be treated the same as other secular
organizations, and are therefore entitled to funding. Also, although the majority in Trinity
Lutheran proclaimed that the case only pertains to playground resurfacing, the success of the
petitioner could inspire further challenges to the concept of “play in the joints.” These challenges
could even test the well-established principle that public funding must be used for a secular
purpose, whether the recipient is secular or not. As Justice Sotomayor noted, if one can justify
the use of funds to renovate church playground facilities by claiming a secular purpose, there is
no reason why one could not present a similar argument for using funds to manufacture the
bricks composing the church itself. A church playground cannot clearly be separated in function
from the church building itself, allowing the precedent of this ruling to potentially be exploited to
further weaken the wall of separation. Thus, Trinity Lutheran’s challenge may motivate other
religious organizations to threaten legal action in order to acquire funding that would be used for
religious purposes (Trinity Lutheran Church of Columbia, Inc. v. Comer). Moreover, it is not the
limited precedent of Trinity Lutheran that ultimately matters; it is the major shift in the Court’s
attitude that could further erode neutrality and “play in the joints,” the building blocks of modern
It is clear that Trinity Lutheran thoroughly undermines the wall of separation between
church and state by defying the “play in the joints” that encourages government neutrality and
maintains separation. Such a decision presents troubling consequences for the state as it tries to
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prevent establishment of religion. Firstly, the fact that the decision in Trinity Lutheran legally
justifies mandated public funding of religious organizations presents the state with unfair and
potentially unconstitutional obligations. As per the stipulations of the majority, Missouri would
have to follow up on whether the playground had any religious imagery, or if it had been used
for any religious instruction or ceremonies or any other indoctrination, or even if the funds
themselves were directed toward what the petitioner said they would be. Such expectations
require Missouri to interfere unjustly into the affairs of Trinity Lutheran, and thus risk violating
its free exercise rights (Katskee et al.). Such obligations make the decision in Trinity Lutheran
relatively counterproductive, as the state must essentially participate in a “reversed play in the
joints,” whereby it must violate the Free Exercise Clause in order to meet the most basic
for public funds on equal footing with secular organizations discriminates in favor of well-
the Scrap Tire Program ranks applicants based on potential media exposure for the state and
Inc. v. Comer). Furthermore, the state in Trinity Lutheran was indirectly discriminating against
less established religious organizations, as they would be unable to provide the exposure the
Program was seeking of its applicants. Thus, in the post-Trinity Lutheran world of church-state
relations, less popular minority religious organizations could receive substantially less of the
‘mandated’ government support that the Court required under such state programs as the Scrap
Tire Program. In effect, this means that the Court, in trying to assert neutrality among treatment
of religious organizations, justified the exact opposite: less well-established religious institutions
will receive less public funding under now-constitutional programs like the Scrap Tire Program,
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undermining the very same principle of neutrality that the Court intended to reinforce. Such
smaller religious organizations would then have a valid claim that the state was violating their
The ramifications of the Court’s decision in Trinity Lutheran Church of Columbia, Inc. v.
Comer (2017) are evident. The Court has forged a dangerous new approach to church-state
relations, mandating that religious organizations are entitled to equal treatment in consideration
for public funds. This flips neutrality, the top-down approach where the state is charged with
treating religious organizations neutrally relative to one another, on its head; because of Trinity
Lutheran, the state must now interact with the church to an extent that could violate both the Free
Exercise Clause and the state’s interest in maintaining disestablishment. Above all, the Court has
set a dangerous precedent whereby well-established religious institutions with deep pockets can
outcompete minority religious organizations with less money. Moreover, the Court has
thoroughly undermined the wall of separation required by even the most well-established church-
state precedent. Despite the limited explicit precedent of Trinity Lutheran, the implications are
clear, and they constitute a fundamental threat to the secular foundations of American
government.
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Works Cited
Balikian, Russell, et al. Brief for the Association of Christian Schools International as Amicus
Curiae, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017). pp. 3-
10.
Cour, Raymond F. “Recent Teaching of the Supreme Court on the Subject of Church and State.”
Records of the American Catholic Historical Society of Philadelphia, vol. 68, no. 3/4,
Katskee, Richard, et al. Brief for the Americans United for the Separation of Church and State as
Amicus Curiae, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___
L. S. W. “Beyond the Establishment Clause: Enforcing Separation of Church and State Through
State Constitutional Provisions.” Virginia Law Review, vol. 71, no. 4, 1985, pp. 625-653.
JSTOR, www.jstor.org/stable/1073024.
Trinity Lutheran Church of Columbia, Inc. v. Comer. 582 U.S. Supreme Court. 2017.
Welton, Cleland B. “The Future of Locke v. Davey.” Virginia Law Review, vol. 96, no. 6, 2010,