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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

(2017) undermine the wall of separation between church and state?

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

built between church and state.

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

constitutional commitments to church-state separation by specifying restrictions on government

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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Trinity Lutheran: whether this extension of Missouri’s obligation to church-state separation

infringes upon Missourians’ right to free exercise.

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

jurisprudence towards the recognition of the constitutional requirement of a wall of separation

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

jurisprudence toward the protection of the secular intent of American government.

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

unconstitutional. Everson represented a critical change in Supreme Court jurisprudence by virtue

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

concession shows the complexity of church-state considerations in a predominantly religious

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-


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

all potential areas of interaction with the church.

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

forbade ministers from serving as delegates to Tennessee’s Constitutional Convention, violated

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

forge a different path.

Accordingly, more recent Supreme Court jurisprudence has embraced neutrality in

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

Establishment Clauses. Locke, in particular, embraced wholeheartedly the principle of neutrality

that dominated the Court’s decision-making into the millennium, though it served to give the

state some leeway as to how to maintain constitutionality.

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

constitution amounted to discrimination against religious organizations, thereby violating the

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

Columbia, Inc. v. Comer).

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

neutrality by introducing an unprecedented argument for the equal treatment of all

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-

by-side with recent casework.

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

precedent is explicitly limited to playground resurfacing. As aforementioned, the decision in

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

American church-state separation.

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

requirement of the Establishment Clause. Secondly, allowing religious organizations to compete

for public funds on equal footing with secular organizations discriminates in favor of well-

organized, widely-recognized churches or organizations. Even in the case of Trinity Lutheran,

the Scrap Tire Program ranks applicants based on potential media exposure for the state and

endorsement of solid waste management organizations (Trinity Lutheran Church of Columbia,

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

own rights of free exercise.

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

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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-


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,

1957, pp. 96-105. JSTOR, www.jstor.org/stable/44210526.

International Refugee Assistance Project v. Trump. 857 F. 3d 554. 2017.

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. ___

(2017). pp. 4-22.

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.

Marsh v. Chambers. 463 U.S. Supreme Court 783. 1983.

McDaniel v. Paty. 435 U.S. Supreme Court 618. 1978.

Missouri Constitution of 1875. Art. II, Sec. 6.

Trinity Lutheran Church of Columbia, Inc. v. Comer. 582 U.S. Supreme Court. 2017.

U.S. Constitution. Amend. I.

U.S. Constitution. Art VI, Sec. 3.

Welton, Cleland B. “The Future of Locke v. Davey.” Virginia Law Review, vol. 96, no. 6, 2010,

pp. 1453-1507. JSTOR, www.jstor.org/stable/20788832.