# Trinity Lutheran Church of Columbia v. Comer (2017) **582 U.S. 449** — the SCOTUS decision that **flipped the Free Exercise Clause from a shield against religious discrimination into a sword against state efforts to maintain church-state separation in public funding**. Decided 7-2 by the Roberts Court on June 26, 2017. A Missouri state program provided grants to nonprofits to resurface playgrounds with rubberized recycled-tire material. Trinity Lutheran Church's daycare applied, qualified on the merits, but was denied because Missouri's state constitution (a "Blaine Amendment"-style provision) prohibited direct state funding of religious institutions. The Roberts majority held that **denying a generally available secular benefit solely because of religious status violates the Free Exercise Clause**. The opinion was carefully cabined in footnote 3 to "express no view on religious uses of funding or other forms of discrimination" — but the cabining was dropped within three years in *[[Espinoza v. Montana]]* and *[[Carson v. Makin]]*. For school choice, *Trinity Lutheran* was the first decisive **post-Zelman** SCOTUS expansion: it began converting the *Zelman* "states **may** fund religious schools" permission into a *Espinoza/Carson* "states **must** include religious schools" mandate. ## The Decision: 7-2 | Justice | Position | Notes | |---------|----------|-------| | **Roberts** (majority) | Wrote opinion | "Odious to our Constitution" to exclude religious entities from secular benefits | | **Thomas** | Concurrence | Would not join footnote 3; wanted broader rule | | **Gorsuch** | Concurrence | Would not join footnote 3; called status/use distinction "unworkable" | | **Kennedy** | Joined majority | | | **Alito** | Joined majority | | | **Kagan** | Joined majority | | | **Breyer** | Concurrence in judgment | Narrow grounds; limited to playground safety | | **Sotomayor** | Dissent | Read dissent from the bench | | **Ginsburg** | Dissent | Joined Sotomayor | The 7-2 margin was deceptively broad. The real action was in **footnote 3**, which Roberts added to secure Breyer's and Kagan's votes. ## The Blaine Amendment Context Missouri's constitutional provision — Article I, Section 7 ("no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion") — belongs to a family of **38 state-level "Blaine Amendment" provisions** adopted between the 1870s and 1920s. Named after House Speaker [[James G. Blaine]], who proposed (and narrowly failed to pass) a federal constitutional amendment in 1875 prohibiting government funding of "sectarian" institutions, these provisions were rooted in **anti-Catholic nativism**: the word "sectarian" was 19th-century code for "Catholic" in a Protestant-dominated public school system. The school-choice movement's legal strategists recognized that Blaine Amendments were both the primary barrier to voucher expansion and a political vulnerability for opponents — because defending provisions with anti-Catholic origins was uncomfortable for the political left. *Trinity Lutheran* began the dismantling. ## Footnote 3: The Time Bomb Roberts inserted **footnote 3** to hold the 7-2 majority: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." The footnote was a judicial compromise — it limited the holding to "status-based" exclusions (you can't deny a grant because the applicant *is* a church) while reserving the question of "use-based" exclusions (can you deny a grant because the applicant would *use* funds for religious purposes?). Critically, **only four justices joined footnote 3** (Roberts, Kennedy, Alito, Kagan). **Thomas and Gorsuch explicitly refused**, with Gorsuch writing separately that the status/use distinction was "unworkable" and "suffocating." This 4-2 split foreshadowed exactly what happened: within five years, the distinction was demolished in *[[Carson v. Makin]]* (2022), where Roberts himself abandoned the limitation he had authored. ## The Litigation The [[Alliance Defending Freedom]] represented Trinity Lutheran Church at every level — district court, Eighth Circuit, and Supreme Court. ADF attorney David Cortman argued before the Court. The case was part of ADF's broader religious-liberty litigation portfolio, which has produced more Supreme Court appearances than any advocacy organization except the federal government. The church's daycare had ranked **5th out of 44 applicants** on the merits for the playground resurfacing grant — making the denial purely about religious identity, not qualification. This strong factual record was essential to the majority's framing. ## Sotomayor's Dissent Sotomayor's dissent — which she read from the bench, a rare gesture signaling the depth of her disagreement — argued that the majority had fundamentally misread the Establishment Clause. In her view, the Constitution's prohibition on government establishment of religion necessarily implies that states *may* choose not to fund religious institutions, and that this choice is not "discrimination" but rather the normal operation of church-state separation. She warned that the majority's logic would eventually require states to directly fund religious education — a prediction vindicated by *Espinoza* (2020) and *Carson* (2022). ## KB Significance *Trinity Lutheran* was the **pivot point** in the school-choice doctrinal arc. *[[Zelman v. Simmons-Harris]]* (2002) established that states **may** fund religious schools. *Trinity Lutheran* began establishing that states **may not refuse to**. The footnote 3 compromise was a temporary pause — Thomas and Gorsuch's refusal to join it signaled that the Court's conservative majority intended to go further, which it did in *[[Espinoza v. Montana]]* and *[[Carson v. Makin]]*. The case also illustrates the KB's broader pattern of incremental litigation strategy: ADF chose a playground-resurfacing case — the most sympathetic possible facts, with no religious instruction at issue — precisely because it established the principle of non-exclusion on grounds where opposition was hardest to sustain. The harder cases would come later, built on *Trinity Lutheran*'s foundation. ## See Also - [[Zelman v. Simmons-Harris]] — The first case in the arc; established "may fund" - [[Espinoza v. Montana]] — Next case; neutralized Blaine Amendments - [[Carson v. Makin]] — Completed the arc; abolished status/use distinction - [[St. Isidore Catholic Charter Case]] — The pending frontier - [[Alliance Defending Freedom]] — Litigated the case at every level - [[Institute for Justice]] — Filed amicus brief; partner in the school-choice litigation strategy - [[School Choice Ecosystem]] — The movement - [[School Choice]] — The concept