Trinity Lutheran Church of Columbia, Inc. v. Comer

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–577

															_________________

															TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT
OF NATURALRESOURCES

															on writ of certiorari to the united states
court of appeals for the eighth circuit

															[June 26, 2017]

															Chief Justice Roberts delivered the opinion of
the Court, except as to footnote 3.

															The Missouri Department of Natural Resources
offers state grants to help public and private schools, nonprofit
daycare centers, and other nonprofit entities purchase rubber
playground surfaces made from recycled tires. Trinity Lutheran
Church applied for such a grant for its preschool and daycare
center and would have received one, but for the fact that Trinity
Lutheran is a church. The Department had a policy of categorically
disqualifying churches and other religious organizations from
receiving grants under its playground resurfacing program. The
question presented is whether the Department’s policy violated the
rights of Trinity Lutheran under the Free Exercise Clause of the
First Amendment.

															I

															A

															The Trinity Lutheran Church Child Learning
Center is a preschool and daycare center open throughout the year
to serve working families in Boone County, Missouri, and the
surrounding area. Established as a nonprofit organization in 1980,
the Center merged with Trinity Lutheran Church in 1985 and operates
under its auspices on church property. The Center admits students
of any religion, and enrollment stands at about 90 children ranging
from age two to five.

															The Center includes a playground that is
equipped with the basic playground essentials: slides, swings,
jungle gyms, monkey bars, and sandboxes. Almost the entire surface
beneath and surrounding the play equipment is coarse pea gravel.
Youngsters, of course, often fall on the playground or tumble from
the equipment. And when they do, the gravel can be unforgiving.

															In 2012, the Center sought to replace a large
portion of the pea gravel with a pour-in-place rubber surface by
participating in Missouri’s Scrap Tire Program. Run by the State’s
Department of Natural Resources to reduce the number of used tires
destined for landfills and dump sites, the program offers
reimbursement grants to qualifying nonprofit organizations that
purchase playground surfaces made from recycled tires. It is funded
through a fee imposed on the sale of new tires in the State.

															Due to limited resources, the Department cannot
offer grants to all applicants and so awards them on a competitive
basis to those scoring highest based on several criteria, such as
the poverty level of the population in the surrounding area and the
applicant’s plan to promote recycling. When the Center applied, the
Department had a strict and express policy of denying grants to any
applicant owned or controlled by a church, sect, or other religious
entity. That policy, in the Department’s view, was compelled by
Article I, Section 7 of the Missouri Constitution, which
provides:

															“That no money shall ever be taken from
the public treasury, directly 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.”

															In its application, the Center disclosed its
status as a ministry of Trinity Lutheran Church and specified that
the Center’s mission was “to provide a safe, clean, and attractive
school facility in conjunction with an educational program
structured to allow a child to grow spiritually, physically,
socially, and cognitively.” App. to Pet. for Cert. 131a. After
describing the playground and the safety hazards posed by its
current surface, the Center detailed the anticipated benefits of
the proposed project: increasing access to the playground for all
children, including those with disabilities, by providing a surface
compliant with the Americans with Disabilities Act of 1990;
providing a safe, long-lasting, and resilient surface under the
play areas; and improving Missouri’s environment by putting
recycled tires to positive use. The Center also noted that the
benefits of a new surface would extend beyond its students to the
local community, whose children often use the playground during
non-school hours.

															The Center ranked fifth among the 44 applicants
in the 2012 Scrap Tire Program. But despite its high score, the
Center was deemed categorically ineligible to receive a grant. In a
letter rejecting the Center’s application, the program director
explained that, under Article I, Section 7 of the Missouri
Constitution, the Department could not provide financial assistance
directly to a church.

															The Department ultimately awarded 14 grants as
part of the 2012 program. Because the Center was operated by
Trinity Lutheran Church, it did not receive a grant.

															B

															Trinity Lutheran sued the Director of the
Department in Federal District Court. The Church alleged that the
Department’s failure to approve the Center’s application, pursuant
to its policy of denying grants to religiously affiliated
applicants, violates the Free Exercise Clause of the First
Amendment. Trinity Lutheran sought declara-tory and injunctive
relief prohibiting the Department from discriminating against the
Church on that basis in future grant applications.

															The District Court granted the Department’s
motion to dismiss. The Free Exercise Clause, the District Court
stated, prohibits the government from outlawing or restricting the
exercise of a religious practice; it generally does not prohibit
withholding an affirmative benefit on account of religion. The
District Court likened the Department’s denial of the scrap tire
grant to the situation this Court encountered in Locke v. Davey , 540 U. S. 712 (2004) . In that case, we upheld
against a free exercise challenge the State of Washington’s
decision not to fund degrees in devotional theology as part of a
state scholarship program. Finding the present case “nearly
indistinguishable from Locke ,” the District Court held that
the Free Exercise Clause did not require the State to make funds
available under the Scrap Tire Program to religious institutions
like Trinity Lutheran. Trinity Lutheran Church of Columbia,
Inc. v. Pauley , 976 F. Supp. 2d 1137, 1151 (WD Mo.
2013).

															The Court of Appeals for the Eighth Circuit
affirmed. The court recognized that it was “rather clear” that
Missouri could award a scrap tire grant to Trinity Lutheran
without running afoul of the Establishment Clause of the United
States Constitution. Trinity Lutheran Church of Columbia,
Inc. v. Pauley , 788 F. 3d 779, 784 (2015). But, the
Court of Appeals explained, that did not mean the Free Exercise
Clause compelled the State to disregard the antiestablishment
principle reflected in its own Constitution. Viewing a monetary
grant to a religious institution as a “ ‘hallmark[ ] of
an established religion,’ ” the court concluded that the State
could rely on an applicant’s religious status to deny its
application. Id. , at 785 (quoting Locke , 540
U. S., at 722; some internal quotation marks omitted).

															Judge Gruender dissented. He distinguished Locke on the ground that it concerned the narrow issue of
funding for the religious training of clergy, and “did not leave
states with unfettered discretion to exclude the religious from
generally available public benefits.” 788 F. 3d, at 791
(opinion concurring in part and dissenting in part).

															Rehearing en banc was denied by an equally
divided court.

															We granted certiorari sub nom. Trinity
Lutheran Church of Columbia, Inc. v. Pauley , 577
U. S. ___ (2016), and now reverse.[ 1 ]

															II

															The First Amendment provides, in part, that
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” The parties
agree that the Establishment Clause of that Amendment does not
prevent Missouri from including Trinity Lutheran in the Scrap Tire
Program. That does not, however, answer the question under the Free
Exercise Clause, because we have recognized that there is “play in
the joints” between what the Establishment Clause permits and the
Free Exercise Clause compels. Locke , 540 U. S., at 718
(internal quotation marks omitted).

															The Free Exercise Clause “protect[s] religious
observers against unequal treatment” and subjects to the strictest
scrutiny laws that target the religious for “special disabilities”
based on their “religious status.” Church of Lukumi Babalu Aye,
Inc. v. Hialeah , 508 U. S. 520, 533, 542 (1993)
(internal quotation marks omitted). Applying that basic principle,
this Court has repeatedly confirmed that denying a generally
available benefit solely on account of religious identity imposes a
penalty on the free exercise of religion that can be justified only
by a state interest “of the highest order.” McDaniel v. Paty , 435 U. S. 618, 628 (1978) (plurality opinion)
(quoting Wisconsin v. Yoder , 406 U. S. 205, 215
(1972) ).

															In Everson v. Board of
Education of Ewing , 330 U. S. 1 (1947) , for example, we
upheld against an Establishment Clause challenge a New Jersey law
enabling a local school district to reimburse parents for the
public transportation costs of sending their children to public and
private schools, including parochial schools. In the course of
ruling that the Establishment Clause allowed New Jersey to extend
that public benefit to all its citizens regardless of their
religious belief, we explained that a State “cannot hamper its
citizens in the free exercise of their own religion. Consequently,
it cannot exclude individual Catholics, Lutherans, Mohammedans,
Baptists, Jews, Methodists, Non-believers, Presbyterians, or the
members of any other faith, because of their faith, or lack of
it , from receiving the benefits of public welfare legislation.” Id. , at 16.

															Three decades later, in McDaniel v. Paty , the Court struck down under the Free Exercise Clause a
Tennessee statute disqualifying ministers from serving as delegates
to the State’s constitutional convention. Writing for the
plurality, Chief Justice Burger acknowledged that Tennessee had
disqualified ministers from serving as legislators since the
adoption of its first Constitution in 1796, and that a number of
early States had also disqualified ministers from legislative
office. This historical tradition, however, did not change the fact
that the statute discriminated against McDaniel by denying him a
benefit solely because of his “ status as a
‘minister.’ ” 435 U. S., at 627. McDaniel could not seek
to participate in the convention while also maintaining his role as
a minister; to pursue the one, he would have to give up the other.
In this way, said Chief Justice Burger, the Tennessee law
“effectively penalizes the free exercise of [McDaniel’s]
constitutional liberties.” Id. , at 626 (quoting Sherbert v. Verner , 374 U. S. 398, 406 (1963) ;
internal quotation marks omitted). Joined by Justice Marshall in
concurrence, Justice Brennan added that “because the challenged
provision requires [McDaniel] to purchase his right to engage in
the ministry by sacrificing his candidacy it impairs the free
exercise of his religion.” McDaniel , 435 U. S., at
634.

															In recent years, when this Court has rejected
free exercise challenges, the laws in question have been neutral
and generally applicable without regard to religion. We have been
careful to distinguish such laws from those that single out the
religious for disfavored treatment.

															For example, in Lyng v. Northwest
Indian Cemetery Protective Association , 485 U. S. 439
(1988) , we held that the Free Exercise Clause did not prohibit the
Government from timber harvesting or road construction on a
particular tract of federal land, even though the Government’s
action would obstruct the religious practice of several Native
American Tribes that held certain sites on the tract to be sacred.
Accepting that “[t]he building of a road or the harvesting of
timber . . . would interfere significantly with private
persons’ ability to pursue spiritual fulfillment according to their
own religious beliefs,” we nonetheless found no free exercise
violation, because the affected individuals were not being “coerced
by the Government’s action into violating their religious beliefs.” Id., at 449. The Court specifically noted, however, that the
Government action did not “penalize religious activity by denying
any person an equal share of the rights, benefits, and privileges
enjoyed by other citizens.” Ibid. In Employment Division, Department of Human
Resources of Oregon v. Smith , 494 U. S. 872 (1990)
, we rejected a free exercise claim brought by two members of a
Native American church denied unemployment benefits because they
had violated Oregon’s drug laws by ingesting peyote for sacramental
purposes. Along the same lines as our decision in Lyng , we
held that the Free Exercise Clause did not entitle the church
members to a special dispensation from the general criminal laws on
account of their religion. At the same time, we again made clear
that the Free Exercise Clause did guard against the
government’s imposition of “special disabilities on the basis of
religious views or religious status.” 494 U. S., at 877
(citing McDaniel , 435 U. S. 618 ).[ 2 ]

															Finally, in Church of Lukumi Babalu Aye,
Inc. v. Hia-leah , we struck down three facially neutral
city ordinances that outlawed certain forms of animal slaughter.
Members of the Santeria religion challenged the ordinances under
the Free Exercise Clause, alleging that despite their facial
neutrality, the ordinances had a discriminatory purpose easy to
ferret out: prohibiting sacrificial rituals integral to Santeria
but distasteful to local residents. We agreed. Before explaining
why the challenged ordinances were not, in fact, neutral or
generally applicable, the Court recounted the fundamentals of our
free exercise jurisprudence. A law, we said, may not discriminate
against “some or all religious beliefs.” 508 U. S., at 532.
Nor may a law regulate or outlaw conduct because it is religiously
motivated. And, citing McDaniel and Smith , we
restated the now-familiar refrain: The Free Exercise Clause
protects against laws that “ ‘impose[ ] special
dis-abilities on the basis of . . . religious
status.’ ” 508 U. S., at 533 (quoting Smith , 494
U. S., at 877); see also Mitchell v. Helms , 530
U. S. 793, 828 (2000) (plurality opinion) (noting “our
decisions that have prohibited governments from discriminating in
the distribution of public benefits based upon religious status or
sincerity” (citing Rosenberger v. Rector and Visitors of
Univ. of Va. , 515 U. S. 819 (1995) ; Lamb’s Chapel v. Center Moriches Union Free School Dist. , 508 U. S.
384 (1993) ; Widmar v. Vincent , 454 U. S. 263
(1981) )).

															III

															A

															The Department’s policy expressly
discriminates against otherwise eligible recipients by
disqualifying them from a public benefit solely because of their
religious character. If the cases just described make one thing
clear, it is that such a policy imposes a penalty on the free
exercise of religion that triggers the most exacting scrutiny. Lukumi , 508 U. S., at 546. This conclusion is
unremarkable in light of our prior decisions.

															Like the disqualification statute in McDaniel , the Department’s policy puts Trinity Lutheran to a
choice: It may participate in an otherwise available benefit
program or remain a religious institution. Of course, Trinity
Lu-theran is free to continue operating as a church, just as
McDaniel was free to continue being a minister. But that freedom
comes at the cost of automatic and absolute exclusion from the
benefits of a public program for which the Center is otherwise
fully qualified. And when the State conditions a benefit in this
way, McDaniel says plainly that the State has punished the
free exercise of religion: “To condition the availability of
benefits . . . upon [a recipient’s] willingness to
. . . surrender[ ] his religiously impelled [status]
effectively penalizes the free exercise of his constitutional
liberties.” 435 U. S., at 626 (plurality opinion) (alterations
omitted).

															The Department contends that merely declining to
extend funds to Trinity Lutheran does not prohibit the
Church from engaging in any religious conduct or otherwise
exercising its religious rights. In this sense, says the
Department, its policy is unlike the ordinances struck down in Lukumi , which outlawed rituals central to Santeria. Here the
Department has simply declined to allocate to Trinity Lutheran a
subsidy the State had no obligation to provide in the first place.
That decision does not meaningfully burden the Church’s free
exercise rights. And absent any such burden, the argument
continues, the Department is free to heed the State’s
antiestablishment objection to providing funds directly to a
church. Brief for Respondent 7–12, 14–16.

															It is true the Department has not criminalized
the way Trinity Lutheran worships or told the Church that it cannot
subscribe to a certain view of the Gospel. But, as the Department
itself acknowledges, the Free Exercise Clause protects against
“indirect coercion or penalties on the free exercise of religion,
not just outright prohibitions.” Lyng , 485 U. S., at
450. As the Court put it more than 50 years ago, “[i]t is too late
in the day to doubt that the liberties of religion and expression
may be infringed by the denial of or placing of conditions upon a
benefit or privilege.” Sherbert , 374 U. S., at 404; see
also McDaniel , 435 U. S., at 633 (Brennan, J.,
concurring in judgment) (The “proposition—that the law does not
interfere with free exercise because it does not directly prohibit
religious activity, but merely conditions eligibility for office on
its abandonment—is . . . squarely rejected by
precedent”).

															Trinity Lutheran is not claiming any entitlement
to a subsidy. It instead asserts a right to participate in a
government benefit program without having to disavow its religious
character. The “imposition of such a condition upon even a
gratuitous benefit inevitably deter[s] or discourage[s] the
exercise of First Amendment rights.” Sherbert , 374
U. S., at 405. The express discrimination against religious
exercise here is not the denial of a grant, but rather the refusal
to allow the Church—solely because it is a church—to compete with
secular organizations for a grant. Cf. Northeastern Fla.
Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656, 666 (1993) (“[T]he ‘injury
in fact’ is the inability to compete on an equal footing in the
bidding process, not the loss of a contract”). Trinity Lutheran is
a member of the community too, and the State’s decision to exclude
it for purposes of this public program must withstand the strictest
scrutiny.

															B

															The Department attempts to get out from under
the weight of our precedents by arguing that the free exercise
question in this case is instead controlled by our decision in Locke v. Davey . It is not. In Locke , the State
of Washington created a scholarship program to assist
high-achieving students with the costs of postsecondary education.
The scholarships were paid out of the State’s general fund, and
eligibility was based on criteria such as an applicant’s score on
college admission tests and family income. While scholarship
recipients were free to use the money at accredited religious and
non-religious schools alike, they were not permitted to use the
funds to pursue a devotional theology degree—one “devotional in
nature or designed to induce religious faith.” 540 U. S., at
716 (internal quotation marks omitted). Davey was selected for a
scholarship but was denied the funds when he refused to certify
that he would not use them toward a devotional degree. He sued,
arguing that the State’s refusal to allow its scholarship money to
go toward such degrees violated his free exercise rights.

															This Court disagreed. It began by explaining
what was not at issue. Washington’s selective funding
program was not comparable to the free exercise violations found in
the “ Lukumi line of cases,” including those striking down
laws requiring individuals to “choose between their religious
beliefs and receiving a government benefit.” Id. , at
720–721. At the outset, then, the Court made clear that Locke was not like the case now before us.

															Washington’s restriction on the use of its
scholarship funds was different. According to the Court, the State
had “merely chosen not to fund a distinct category of instruction.” Id. , at 721. Davey was not denied a scholarship because of
who he was ; he was denied a scholarship because of what he
proposed to do —use the funds to prepare for the ministry.
Here there is no question that Trinity Lutheran was denied a grant
simply because of what it is—a church.

															The Court in Locke also stated that
Washington’s choice was in keeping with the State’s
antiestablishment interest in not using taxpayer funds to pay for
the training of clergy; in fact, the Court could “think of few
areas in which a State’s antiestablishment interests come more into
play.” Id., at 722. The claimant in Locke sought
funding for an “essentially religious endeavor . . . akin
to a religious calling as well as an academic pursuit,” and
opposition to such funding “to support church leaders” lay at the
historic core of the Religion Clauses. Id. , at 721–722. Here
nothing of the sort can be said about a program to use recycled
tires to resurface playgrounds.

															Relying on Locke , the Department
nonetheless emphasizes Missouri’s similar constitutional tradition
of not furnishing taxpayer money directly to churches. Brief for
Respondent 15–16. But Locke took account of Washington’s
antiestablishment interest only after determining, as noted, that
the scholarship program did not “require students to choose between
their religious beliefs and receiving a government benefit.” 540
U. S., at 720–721 (citing McDaniel , 435 U. S. 618
). As the Court put it, Washington’s scholarship program went “a
long way toward including religion in its benefits.” Locke ,
540 U. S., at 724. Students in the program were free to use
their scholarships at “pervasively religious schools.” Ibid .
Davey could use his scholarship to pursue a secular degree at one
institution while studying devotional theology at another. Id., at 721, n. 4. He could also use his scholarship
money to attend a religious college and take devotional theology
courses there. Id., at 725. The only thing he could not do
was use the scholarship to pursue a degree in that subject.

															In this case, there is no dispute that Trinity
Lutheran is put to the choice between being a church and
receiving a government benefit. The rule is simple: No churches
need apply.[ 3 ]

															C

															The State in this case expressly requires
Trinity Lutheran to renounce its religious character in order to
participate in an otherwise generally available public benefit
program, for which it is fully qualified. Our cases make clear that
such a condition imposes a penalty on the free exercise of religion
that must be subjected to the “most rigorous” scrutiny. Lukumi , 508 U. S., at 546.[ 4 ]

															Under that stringent standard, only a state
interest “of the highest order” can justify the Department’s
discriminatory policy. McDaniel , 435 U. S., at 628
(internal quotation marks omitted). Yet the Department offers
nothing more than Missouri’s policy preference for skating as far
as possible from religious establishment concerns. Brief for
Respondent 15–16. In the face of the clear infringement on free
exercise before us, that interest cannot qual-ify as compelling. As
we said when considering Missouri’s same policy preference on a
prior occasion, “the state interest asserted here—in achieving
greater separation of church and State than is already ensured
under the Establishment Clause of the Federal Constitution—is
limited by the Free Exercise Clause.” Widmar , 454 U. S., at
276.

															The State has pursued its preferred policy to
the point of expressly denying a qualified religious entity a
public benefit solely because of its religious character. Under our
precedents, that goes too far. The Department’s policy violates the
Free Exercise Clause.[ 5 ]

															*  *  *

															Nearly 200 years ago, a legislator urged the
Maryland Assembly to adopt a bill that would end the State’s
disqualification of Jews from public office:

															“If, on account of my religious faith, I
am subjected to disqualifications, from which others are free,
. . . I cannot but consider myself a persecuted man.
. . . An odious exclusion from any of the benefits common
to the rest of my fellow-citizens, is a persecution, differing only
in degree, but of a nature equally unjustifiable with that, whose
instruments are chains and torture.” Speech by H. M. Brackenridge,
Dec. Sess. 1818, in H. Brackenridge, W. Worthington, & J.
Tyson, Speeches in the House of Delegates of Maryland, 64
(1829).

															The Missouri Department of Natural Resources has
not subjected anyone to chains or torture on account of religion.
And the result of the State’s policy is nothing so dramatic as the
denial of political office. The consequence is, in all likelihood,
a few extra scraped knees. But the exclusion of Trinity Lutheran
from a public benefit for which it is otherwise qualified, solely
because it is a church, is odious to our Constitution all the same,
and cannot stand.

															The judgment of the United States Court of
Appeals for the Eighth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.

															It is so ordered. Notes 1 In April 2017, the
Governor of Missouri announced that he had directed the Department
to begin allowing religious organizations to compete for and
receive Department grants on the same terms as secular
organizations. That announcement does not moot this case. We have
said that such voluntary cessation of a challenged practice does
not moot a case unless “subsequent events ma[ke] it absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc ., 528 U. S. 167, 189
(2000) (internal quotation marks omitted). The Department has not
carried the “heavy burden” of making “absolutely clear” that it
could not revert to its policy of excluding religious
organizations. Ibid. The parties agree. See Letter from
James R. Layton, Counsel for Respondent, to Scott S. Harris, Clerk
of Court (Apr. 18, 2017) (adopting the position of the Missouri
Attorney General’s Office that “there is no clearly effective
barrier that would prevent the [Department] from reinstating [its]
policy in the future”); Letter from David A. Cortman, Counsel for
Petitioner, to Scott S. Harris, Clerk of Court (Apr. 18, 2017)
(“[T]he policy change does nothing to remedy the source of the
[Department’s] original policy—the Missouri Supreme Court’s
interpretation of Article 1, §7 of the Missouri
Constitution”). 2 This is not to say that
any application of a valid and neutral law of general applicability
is necessarily constitutional under the Free Exercise Clause.
Recently, in Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC , 565 U. S. 171 (2012) , this Court
held that the Religion Clauses required a ministerial exception to
the neutral prohibition on employment retaliation contained in the
Americans with Disabilities Act. Distinguishing Smith , we
explained that while that case concerned government regulation of
physical acts, “[t]he present case, in contrast, concerns
government interference with an internal church decision that
affects the faith and mission of the church itself.” 565
U. S. , at 190. 3 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. 4 We have held that “a law
targeting religious beliefs as such is never permissible.” Lukumi, 508 U. S., at 533; see also McDaniel v. Paty , 435 U. S. 618, 626 (1978) (plurality opinion). We
do not need to decide whether the condition Missouri imposes in
this case falls within the scope of that rule, because it cannot
survive strict scrutiny in any event. 5 Based on this holding, we
need not reach the Church’s claim that the policy also violates the
Equal Protection Clause. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–577

															_________________

															TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT
OF NATURALRESOURCES

															on writ of certiorari to the united states
court of appeals for the eighth circuit

															[June 26, 2017]

															Justice Thomas, with whom Justice Gorsuch
joins, concurring in part.

															The Court today reaffirms that “denying a
generally available benefit solely on account of religious identity
imposes a penalty on the free exercise of religion that can be
justified,” if at all, “only by a state interest ‘of the highest
order.’ ” Ante , at 6. The Free Exercise Clause, which
generally prohibits laws that facially discriminate against
religion, compels this conclusion. See Locke v. Davey , 540 U. S. 712 –727 (2004) (Scalia, J.,
dissenting).

															Despite this prohibition, the Court in Locke permitted a State to “disfavor . . .
religion” by imposing what it deemed a “relatively minor” burden on
religious exercise to advance the State’s antiestablishment
“interest in not funding the religious training of clergy.” Id. , at 720, 722, n. 5, 725. The Court justified this
law based on its view that there is “ ‘play in the
joints’ ” between the Free Exercise Clause and the
Establishment Clause—that is, that “there are some state actions
permitted by the Establishment Clause but not required by the Free
Exercise Clause.” Id. , at 719. Accordingly, Locke did
not subject the law at issue to any form of heightened scrutiny.
But it also did not suggest that discrimination against religion
outside the limited context of support for ministerial training
would be similarly exempt from exacting review.

															This Court’s endorsement in Locke of even
a “mil[d] kind,” id. , at 720, of discrimination against
religion remains troubling. See generally id. , at 726–734
(Scalia, J., dissenting). But because the Court today appropriately
construes Locke narrowly, see Part III–B, ante , and
because no party has asked us to reconsider it, I join nearly all
of the Court’s opinion. I do not, however, join footnote 3, for the
reasons expressed by Justice Gorsuch, post , p. 1
(opinion concurring in part). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–577

															_________________

															TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT
OF NATURALRESOURCES

															on writ of certiorari to the united states
court of appeals for the eighth circuit

															[June 26, 2017]

															Justice Gorsuch, with whom Justice Thomas
joins, concurring in part.

															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.

															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.

															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.

															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.

															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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–577

															_________________

															TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT
OF NATURALRESOURCES

															on writ of certiorari to the united states
court of appeals for the eighth circuit

															[June 26, 2017]

															Justice Breyer, concurring in the
judgment.

															I agree with much of what the Court says and
with its result. But I find relevant, and would emphasize, the
particular nature of the “public benefit” here at issue. Cf. ante, at 11 (“Trinity Lutheran . . . asserts a
right to participate in a government benefit program”); ante , at 12 (referring to precedent “striking down laws
requiring individuals to choose between their religious beliefs and
receiving a government benefit” (internal quotation marks
omitted)); ante , at 10 (referring to Trinity Lutheran’s
“automatic and absolute exclusion from the benefits of a public
program”); ante , at 9–10 (the State’s policy disqualifies
“otherwise eligible recipients . . . from a public
benefit solely because of their religious character”); ante ,
at 6–7 (quoting the statement in Everson v. Board of Ed.
of Ewing , 330 U. S. 1, 16 (1947) , that the State “cannot
exclude” individuals “ because of their faith ” from
“receiving the benefits of public welfare legislation”).

															The Court stated in Everson that “cutting
off church schools from” such “general government services as
ordinary police and fire protection . . . is obviously
not the purpose of the First Amendment.” 330 U. S. , at
17–18. Here, the State would cut Trinity Lutheran off from
participation in a general program designed to secure or to improve
the health and safety of children. I see no significant difference.
The fact that the program at issue ultimately funds only a limited
number of projects cannot itself justify a religious distinction.
Nor is there any administrative or other reason to treat church
schools differently. The sole reason advanced that explains the
difference is faith. And it is that last-mentioned fact that calls
the Free Exercise Clause into play. We need not go further. Public
benefits come in many shapes and sizes. I would leave the
application of the Free Exercise Clause to other kinds of public
benefits for another day. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–577

															_________________

															TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
PETITIONER v. CAROL S. COMER, DIRECTOR, MISSOURI DEPARTMENT
OF NATURALRESOURCES

															on writ of certiorari to the united states
court of appeals for the eighth circuit

															[June 26, 2017]

															Justice Sotomayor, with whom Justice Ginsburg
joins, dissenting.

															To hear the Court tell it, this is a simple case
about recycling tires to resurface a playground. The stakes are
higher. This case is about nothing less than the relationship
between religious institutions and the civil government—that is,
between church and state. The Court today profoundly changes that
relationship by holding, for the first time, that the Constitution
requires the government to provide public funds directly to a
church. Its decision slights both our precedents and our history,
and its reasoning weakens this country’s longstanding commitment to
a separation of church and state beneficial to both.

															I

															Founded in 1922, Trinity Lutheran Church
(Church) “operates . . . for the express purpose of
carrying out the commission of . . . Jesus Christ as
directed to His church on earth.” Our Story,
http://www.trinity-lcms.org/story (all internet materials as last
visited June 22, 2017). The Church uses “preaching, teaching,
worship, witness, service, and fellowship according to the Word of
God” tocarry out its mission “to ‘make disciples.’ ” Mission,
http://www.trinity-lcms.org/mission (quoting Matthew 28:18–20). The
Church’s religious beliefs include its desire to “associat[e] with
the [Trinity Church Child] Learning Center.” App. to Pet. for Cert.
101a. Located on Church property, the Learning Center provides
daycare and preschool for about “90 children ages two to
kindergarten.” Id., at 100a.

															The Learning Center serves as “a ministry of the
Church and incorporates daily religion and developmentally
appropriate activities into . . . [its] program.” Id., at 101a. In this way, “[t]hrough the Learning Center,
the Church teaches a Christian world view to children of members of
the Church, as well as children of non-member residents” of the
area. Ibid. These activities represent the Church’s “sincere
religious belief . . . to use [the Learning Center] to
teach the Gospel to children of its members, as well to bring the
Gospel message to non-members.” Ibid. The Learning Center’s facilities include a
playground, the unlikely source of this dispute. The Church
provides the playground and other “safe, clean, and attractive”
facilities “in conjunction with an education program structured to
allow a child to grow spiritually, physically, socially, and
cognitively.” Ibid. This case began in 2012 when the Church
applied for funding to upgrade the playground’s pea gravel and
grass surface through Missouri’s Scrap Tire Program, which provides
grants for the purchase and installation of recycled tire material
to resurface playgrounds. The Church sought $20,000 for a $30,580
project to modernize the playground, part of its effort to gain
state accreditation for the Learning Center as an early childhood
education program. Missouri denied the Church funding based on
Article I, §7, of its State Constitution, which prohibits the use
of public funds “in aid of any church, sect, or denomination of
religion.”

															II

															Properly understood then, this is a case about
whether Missouri can decline to fund improvements to the facilities
the Church uses to practice and spread its religious views. This
Court has repeatedly warned that funding of exactly this
kind—payments from the government to a house of worship—would cross
the line drawn by the Establishment Clause. See, e.g., Walz v. Tax Comm’n of City of New York , 397 U. S. 664, 675
(1970) ; Rosenberger v. Rector and Visitors of Univ. of
Va. , 515 U. S. 819, 844 (1995) ; Mitchell v. Helms , 530 U. S. 793 –844 (2000) (O’Connor, J.,
concurring in judgment). So it is surprising that the Court
mentions the Establishment Clause only to note the parties’
agreement that it “does not prevent Missouri from including Trinity
Lutheran in the Scrap Tire Program.” Ante, at 6.
Constitutional questions are decided by this Court, not the
parties’ concessions. The Establishment Clause does not allow
Missouri to grant the Church’s funding request because the Church
uses the Learning Center, including its playground, in conjunction
with its religious mission. The Court’s silence on this front
signals either its misunderstanding of the facts of this case or a
startling departure from our precedents.

															A

															The government may not directly fund religious
exercise. See Everson v. Board of Ed. of Ewing , 330
U. S. 1, 16 (1947) ; Mitchell , 530 U. S., at 840
(O’Connor, J., concurring in judgment) (“[O]ur decisions provide no
precedent for the use of public funds to finance religious
activities” (internal quotation marks omitted)). Put in doctrinal
terms, such funding violates the Establishment Clause because it
impermissibly “advanc[es] . . . religion.”[ 1 ] Agostini v. Felton , 521
U. S. 203 –223 (1997).

															Nowhere is this rule more clearly implicated
than when funds flow directly from the public treasury to a house
of worship.[ 2 ] A house of
worship exists to foster and further religious exercise. There, a
group of people, bound by common religious beliefs, comes together
“to shape its own faith and mission.” Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC , 565 U. S. 171,
188 (2012) . Within its walls, worshippers gather to practice and
reaffirm their faith. And from its base, the faithful reach out to
those not yet convinced of the group’s beliefs. When a government
funds a house of worship, it underwrites this religious
exercise. Tilton v. Richardson , 403
U. S. 672 (1971) , held as much. The federal program at issue
provided construction grants to colleges and universities but
prohibited grantees from using the funds to construct facilities
“ ‘used for sectarian instruction or as a place for religious
worship’ ” or “ ‘used primarily in connection with any
part of the program of a school or department of divinity.’ ” Id., at 675 (plurality opinion) (quoting 20
U. S. C. §751(a)(2) (1964 ed., Supp. V)). It allowed the
Federal Government to recover the grant’s value if a grantee
violated this prohibition within twenty years of the grant. See 403
U. S., at 675 . The Court unanimously agreed that this
time limit on recovery violated the Establishment Clause. “[T]he
original federal grant w[ould] in part have the effect of advancing
religion,” a plurality explained, if a grantee “converted [a
facility] into a chapel or otherwise used [it] to promote religious
interests” after twenty years. Id., at 683; see also id. , at 692 (Douglas, J., concurring in part and dissenting
in part); Lemon v. Kurtzman , 403 U. S. 602 –661
(1971) (Brennan, J., concurring); id. , at 665, n. 1
(opinion of White, J.). Accordingly, the Court severed the
twenty-year limit, ensuring that program funds would be put to
secular use and thereby bringing the program in line with the
Establishment Clause. See Tilton , 403 U. S., at 683
(plurality opinion).

															This case is no different. The Church seeks
state funds to improve the Learning Center’s facilities, which, by
the Church’s own avowed description, are used to assist the
spiritual growth of the children of its members and to spread the
Church’s faith to the children of nonmembers. The Church’s
playground surface—like a Sunday School room’s walls or the
sanctuary’s pews—are integrated with and integral to its religious
mission. The conclusion that the funding the Church seeks would
impermissibly advance religion is inescapable.

															True, this Court has found some direct
government funding of religious institutions to be consistent with
the Establishment Clause. But the funding in those cases came with
assurances that public funds would not be used for religious
activity, despite the religious nature of the institution. See, e.g., Rosenberger , 515 U. S., at 875–876 (Souter, J.,
dissenting) (chronicling cases). The Church has not and cannot
provide such assurances here.[ 3 ] See Committee for Public Ed. & Religious
Liberty v. Nyquist , 413 U. S. 756, 774 (1973) (“No
attempt is made to restrict payments to those expenditures related
to the upkeep of facilities used exclusively for secular purposes,
nor do we think it possible within the context of these
religion-oriented institutions to impose such restrictions”). The
Church has a religious mission, one that it pursues through the
Learning Center. The playground surface cannot be confined to
secular use any more than lumber used to frame the Church’s walls,
glass stained and used to form its windows, or nails used to build
its altar.

															B

															The Court may simply disagree with this
account of the facts and think that the Church does not put its
playground to religious use. If so, its mistake is limited to this
case. But if it agrees that the State’s funding would further
religious activity and sees no Establishment Clause problem, then
it must be implicitly applying a rule other than the one agreed to
in our precedents.

															When the Court last addressed direct funding of
religious institutions, in Mitchell , it adhered to the rule
that the Establishment Clause prohibits the direct funding of
religious activities. At issue was a federal program that helped
state and local agencies lend educational materials to public and
private schools, including religious schools. See 530 U. S.,
at 801–803 (plurality opinion). The controlling concurrence assured
itself that the program would not lead to the public funding of
religious activity. It pointed out that the program allocated
secular aid, that it did so “on the basis of neutral, secular
criteria,” that the aid would not “supplant non-[program] funds,”
that “no . . . funds ever reach the coffers of religious
schools,” that “evidence of actual diversion is de minimis ,”
and that the program had “adequate safeguards” to police
violations. Id., at 867 (O’Connor, J., concurring in
judgment). Those factors, it concluded, were “sufficient to find
that the program . . . [did] not have the impermissible
effect of advancing religion.” Ibid. A plurality would have instead upheld the
program based only on the secular nature of the aid and the
program’s “neutrality” as to the religious or secular nature of the
recipient. See id., at 809–814. The controlling concurrence
rejected that approach. It viewed the plurality’s test—“secular
content aid . . . distributed on the basis of wholly
neutral criteria”—as constitutionally insufficient. Id. , at
839. This test, explained the concurrence, ignored whether the
public funds subsidize religion, the touchstone of establishment
jurisprudence. See id., at 844 (noting that the plurality’s
logic would allow funding of “religious organizations (including
churches)” where “the participating religious organizations
(including churches) . . . use that aid to support
religious indoctrination”).

															Today’s opinion suggests the Court has made the
leap the Mitchell plurality could not. For if it agrees that
the funding here will finance religious activities, then only a
rule that considers that fact irrelevant could support a conclusion
of constitutionality. The problems of the “secular and neutral”
approach have been aired before. See, e.g., id. , at 900–902
(Souter, J., dissenting). It has no basis in the history to which
the Court has repeatedly turned to inform its understanding of the
Establishment Clause. It permits direct subsidies for religious
indoctrination, with all the attendant concerns that led to the
Establishment Clause. And it favors certain religious groups, those
with a belief system that allows them to compete for public dollars
and those well-organized and well-funded enough to do so
successfully.[ 4 ]

															Such a break with precedent would mark a radical
mistake. The Establishment Clause protects both religion and
government from the dangers that result when the two become
entwined, “ not by providing every religion with an equal
opportunity (say, to secure state funding or to pray in the
public schools), but by drawing fairly clear lines of separation between church and state—at least where the
heartland of religious belief, such as primary religious [worship],
is at issue.” Zelman v. Simmons-Harris , 536
U. S. 639 –723 (2002) (Breyer, J., dissenting).

															III

															Even assuming the absence of an Establishment
Clause violation and proceeding on the Court’s preferred front—the
Free Exercise Clause—the Court errs. It claims that the government
may not draw lines based on an entity’s religious “status.” But we
have repeatedly said that it can. When confronted with government
action that draws such a line, we have carefully considered whether
the interests embodied in the Religion Clauses justify that line.
The question here is thus whether those interests support the line
drawn in Missouri’s Article I, §7, separating the State’s treasury
from those of houses of worship. They unquestionably do.

															A

															The Establishment Clause prohibits laws
“respecting an establishment of religion” and the Free Exercise
Clause prohibits laws “prohibiting the free exercise thereof.”
U. S. Const., Amdt. 1. “[I]f expanded to a logical extreme,”
these prohibitions “would tend to clash with the other.” Walz , 397 U. S., at 668–669. Even in the absence of a
violation of one of the Religion Clauses, the interaction of
government and religion can raise concerns that sound in both
Clauses. For that reason, the government may sometimes act to
accommodate those concerns, even when not required to do so by the
Free Exercise Clause, without violating the Establishment Clause.
And the government may sometimes act to accommodate those concerns,
even when not required to do so by the Establishment Clause,
without violating the Free Exercise Clause. “[T]here is room for
play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.” Id. , at 669. This space between the two
Clauses gives government some room to recognize the unique status
of religious entities and to single them out on that basis for
exclusion from otherwise generally applicable laws.

															Invoking this principle, this Court has held
that the government may sometimes relieve religious entities from
the requirements of government programs. A State need not, for
example, require nonprofit houses of worship to pay property taxes.
It may instead “spar[e] the exercise of religion from the burden of
property taxation levied on private profit institutions” and spare
the government “the direct confrontations and conflicts that follow
in the train of those legal processes” associated with taxation.
See id. , at 673–674. Nor must a State require nonprofit
religious entities to abstain from making employment decisions on
the basis of religion. It may instead avoid imposing on these
institutions a “[f]ear of potential liability [that] might affect
the way” it “carried out what it understood to be its religious
mission” and on the government the sensitive task of policing
compliance. Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v. Amos , 483 U. S. 327,
336 (1987) ; see also id., at 343 (Brennan, J., concurring
in judgment). But the government may not invoke the space between
the Religion Clauses in a manner that “devolve[s] into an unlawful
fostering of religion.” Cutter v. Wilkinson , 544
U. S. 709, 714 (2005) (internal quotation marks omitted).

															Invoking this same principle, this Court has
held that the government may sometimes close off certain government
aid programs to religious entities. The State need not, for
example, fund the training of a religious group’s leaders, those
“who will preach their beliefs, teach their faith, and carry out
their mission,” Hosanna-Tabor , 565 U. S., at 196. It
may instead avoid the historic “antiestablishment interests” raised
by the use of “taxpayer funds to support church leaders.” Locke v. Davey , 540 U. S. 712, 722 (2004) .

															When reviewing a law that, like this one,
singles out religious entities for exclusion from its reach, we
thus have not myopically focused on the fact that a law singles out
religious entities, but on the reasons that it does so.

															B

															Missouri has decided that the unique status of
houses of worship requires a special rule when it comes to public
funds. Its Constitution reflects that choice and provides:

															“That no money shall ever be taken from
the public treasury, directly 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.” Art. I, §7.

															Missouri’s decision, which has deep roots in our
Nation’s history, reflects a reasonable and constitutional
judgment.

															1

															This Court has consistently looked to history
for guidance when applying the Constitution’s Religion Clauses.
Those Clauses guard against a return to the past, and so that past
properly informs their meaning. See, e.g., Everson , 330
U. S., at 14–15; Torcaso v. Watkins , 367
U. S. 488, 492 (1961) . This case is no different.

															This Nation’s early experience with, and
eventual rejection of, established religion—shorthand for
“sponsorship, financial support, and active involvement of the
sovereign in religious activity,” Walz , 397 U. S., at
668—defies easy summary. No two States’ experiences were the same.
In some a religious establishment never took hold. See T. Curry,
The First Freedoms 19, 72–74, 76–77, 159–160 (1986) (Curry). In
others establishment varied in terms of the sect (or sects)
supported, the nature and extent of that support, and the
uniformity of that support across the State. Where establishment
did take hold, it lost its grip at different times and at different
speeds. See T. Cobb, The Rise of Religious Liberty in America
510–511 (1970 ed.) (Cobb).

															Despite this rich diversity of experience, the
story relevant here is one of consistency. The use of public funds
to support core religious institutions can safely be described as a
hallmark of the States’ early experiences with religious
establishment. Every state establishment saw laws passed to raise
public funds and direct them toward houses of worship and
ministers. And as the States all dises-tablished, one by one, they
all undid those laws.[ 5 ]

															Those who fought to end the public funding of
religion based their opposition on a powerful set of arguments, all
stemming from the basic premise that the practice harmed both civil
government and religion. The civil government, they maintained,
could claim no authority over religious belief. For them, support
for religion compelled by the State marked an overstep of authority
that would only lead to more. Equally troubling, it risked
divisiveness by giving religions reason to compete for the State’s
beneficence. Faith, they believed, was a personal matter, entirely
between an individual and his god. Religion was best served when
sects reached out on the basis of their tenets alone, unsullied by
outside forces, allowing adherents to come to their faith
voluntarily. Over and over, these arguments gained acceptance and
led to the end of state laws exacting payment for the support of
religion.

															Take Virginia. After the Revolution, Virginia
debated and rejected a general religious assessment. The proposed
bill would have allowed taxpayers to direct payments to a Christian
church of their choice to support a minister, exempted “Quakers and
Menonists,” and sent undirected assessments to the public treasury
for “seminaries of learning.” A Bill Establishing a Provision for
Teachers of the Christian Religion, reprinted in Everson ,
330 U. S., at 74 (supplemental appendix to dissent of
Rutledge, J.).

															In opposing this proposal, James Madison
authored his famous Memorial and Remonstrance, in which he
condemned the bill as hostile to religious freedom. Memorial and
Remonstrance Against Religious Assessments (1785), in 5 The
Founders’ Constitution 82–84 (P. Kurland & R. Lerner eds.
1987). Believing it “proper to take alarm,” despite the bill’s
limits, he protested “that the same authority which can force a
citizen to contribute three pence only of his property for the
support of any one establishment, may force him to conform to any
other establishment.” Id., at 82 . Religion had
“flourished, not only without the support of human laws, but in
spite of every opposition from them.” Id. , at 83 . Compelled support for religion, he argued, would only weaken
believers’ “confidence in its innate excellence,” strengthen
others’ “suspicion that its friends are too conscious of its
fallacies to trust in its own merits,” and harm the “purity and
efficacy” of the supported religion. Ibid. He ended by
deeming the bill incompatible with Virginia’s guarantee of
“ ‘free exercise of . . . Religion according to the
dictates of conscience.’ ” Id., at 84 . Madison contributed one influential voice to a
larger chorus of petitions opposed to the bill. Others included
“the religious bodies of Baptists, Presbyterians, and Quakers.” T.
Buckley, Church and State in Revolutionary Virginia 1776–1787, p.
148 (1977). Their petitions raised similar points. See id., at 137–140, 148–149. Like Madison, many viewed the bill as a step
toward a dangerous church-state relationship. See id., at
151. These voices against the bill won out, and Virginia soon
prohibited religious assessments. See Virginia Act for Establishing
Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution
84–85.

															This same debate played out in nearby Maryland,
with the same result. In 1784, an assessment bill was proposed that
would have allowed taxpayers to direct payments to ministers (of
sufficiently large churches) or to the poor. Non-Christians were
exempt. See Curry 155. Controversy over the bill “eclipse[d] in
volume of writing and bitter-ness of invective every other
political dispute since the debate over the question of
independence.” J. Rainbolt, The Struggle To Define “Religious
Liberty” in Maryland, 1776–85, 17 J. Church & State 443, 449
(1975). Critics of the bill raised the same themes as those in
Virginia: that religion “needs not the power of rules to establish,
but only to protect it”; that financial support of religion leads
toward an establishment; and that laws for such support are
“oppressive.” Curry 156, 157 (internal quotation marks omitted);
see also Copy of Petition [to General Assembly], Maryland Gazette,
Mar. 25, 1785, pp. 1, 2, col.1 (“[W]hy should such as do not
desire or make conscience of it, be forced by law”). When the
legislature next met, most representatives “had been elected by
anti-assessment voters,” and the bill failed. Curry 157. In 1810,
Maryland revoked the authority to levy religious assessments. See
Md. Const., Amdt. XIII (1776), in 3 Federal and State Constitutions
1705 (F. Thorpe ed. 1909) (Thorpe).

															In New England, which took longer to reach this
conclusion, Vermont went first. Its religious assessment laws were
accommodating. A person who was not a member of his town’s church
was, upon securing a certificate to that effect, exempt. See L.
Levy, The Establishment Clause 50 (1994) (Levy). Even so, the laws
were viewed by many as violating Vermont’s constitutional
prohibition against involuntary support of religion and guarantee
of freedom of conscience. See, e.g. , Address of Council of
Censors to the People of Vermont 5–8 (1800) (“[R]eligion is a
concern personally and exclusively operative between the individual
and his God”); Address of Council of Censors [Vermont] 3–7 (Dec.
1806) (the laws’ “evils” included “violence done to the feelings of
men” and “their property,” “animosities,” and “the dangerous
lengths of which it is a foundation for us to go, in both civil and
religious usurpation”). In 1807, Vermont “repealed all laws
concerning taxation for religion.” Levy 51.

															The rest of New England heard the same arguments
and reached the same conclusion. John Leland’s sustained criticism
of religious assessments over 20 years helped end the practice in
Connecticut. See, e.g., Esbeck, Dissent and
Disestablishment: The Church-State Settlement in the Early American
Republic, 2004 B. Y. U. L. Rev. 1385, 1498, 1501–1511. The
reasons he offered in urging opposition to the State’s laws will by
now be familiar. Religion “is a matter between God and
individuals,” which does not need, and would only be harmed by,
government support. J. Leland, The Rights of Conscience Inalienable
(1791), in The Sacred Rights of Conscience 337–339 (D. Dreisbach
& M. Hall eds. 2009). “[T]ruth gains honor; and men more firmly
believe it,” when religion is subjected to the “cool investigation
and fair argument” that freedom of conscience produces. Id., at 340. Religious assessments violated that freedom, he argued. See id., at 342 (“If these people bind nobody but themselves,
who is injured by their religious opinions? But if they bind an
individual besides themselves, the bond is fraudulent and ought to
be declared illegal”). Connecticut ended religious assessments
first by statute in 1817, then by its State Constitution of 1818.
See Cobb 513.

															In New Hampshire, a steady campaign against
religious assessments led to a bill that was subjected to “the
scru-tiny of the people.” C. Kinney, Church & State: The
Strug-gle for Separation in New Hampshire, 1630–1900, p. 101 (1955)
(Kinney). It was nicknamed “Dr. Whipple’s Act” after its strongest
advocate in the State House. Orford Union Congregational
Soc. v. West Congregational Soc. of Orford , 55 N. H.
463, 468–469, n. (1875). He defended the bill as a means “to take
religion out of politics, to eliminate state support, to insure
opportunity to worship with true freedom of conscience, [and] to
put all sects and denominations of Christians upon a level.” Kinney
103. The bill became law and provided “that no person shall be
compelled to join or support, or be classed with, or associated to
any congregation, church or religious society without his express
consent first had and obtained.” Act [of July 1, 1819] Regulating
Towns and Choice of Town Officers §3, in 1 Laws of the State of New
Hampshire Enacted Since June 1, 1815, p. 45 (1824). Massachusetts
held on the longest of all the States, finally ending religious
assessments in 1833. See Cobb 515.[ 6 ]

															The course of this history shows that those who
lived under the laws and practices that formed religious
establishments made a considered decision that civil government
should not fund ministers and their houses of worship. To us, their
debates may seem abstract and this history remote. That is only
because we live in a society that has long benefited from decisions
made in response to these now centuries-old arguments, a society
that those not so fortunate fought hard to build.

															2

															In Locke , this Court expressed an
understanding of, and respect for, this history. Locke involved a provision of the State of Washington’s Constitution
that, like Missouri’s nearly identical Article I, §7, barred the
use of public funds for houses of worship or ministers. Consistent
with this denial of funds to ministers, the State’s college
scholarship program did not allow funds to be used for devotional
theology degrees. When asked whether this violated the would-be
minister’s free exercise rights, the Court invoked the play in the
joints principle and answered no. The Establishment Clause did not
require the prohibition because “the link between government funds
and religious training [was] broken by the independent and private
choice of [scholarship] recipients.” 540 U. S., at 719; see
also supra , n. 2. Nonetheless, the denial did not violate
the Free Exercise Clause because a “historic and substantial state
interest” supported the constitutional provision. 540 U. S.,
at 725. The Court could “think of few areas in which a State’s
antiestablishment interests come more into play” than the
“procuring [of] taxpayer funds to support church leaders.” Id., at 722.

															The same is true of this case, about directing
taxpayer funds to houses of worship, see supra , at 2. Like
the use of public dollars for ministers at issue in Locke ,
turning over public funds to houses of worship implicates serious
antiestablishment and free exercise interests. The history just
discussed fully supports this conclusion. As states disestablished,
they repealed laws allowing taxation to support religion because
the practice threatened other forms of government support for,
involved some government control over, and weakened supporters’
control of religion. Common sense also supports this conclusion.
Recall that a state may not fund religious activities without
violating the Establishment Clause. See Part II–A, supra . A
state can reasonably use status as a “house of worship” as a
stand-in for “religious activities.” Inside a house of worship,
dividing the religious from the secular would require intrusive
line-drawing by government, and monitoring those lines would
entangle government with the house of worship’s activities. And so
while not every activity a house of worship undertakes will be
inseparably linked to religious activity, “the likelihood that many
are makes a categorical rule a suitable means to avoid chilling the
exercise of religion.” Amos , 483 U. S., at 345
(Brennan, J., concurring in judgment). Finally, and of course, such
funding implicates the free exercise rights of taxpayers by denying
them the chance to decide for themselves whether and how to fund
religion. If there is any “ ‘room for play in the joints’
between” the Religion Clauses, it is here. Locke , 540
U. S., at 718 (quoting Walz , 397 U. S., at
669).

															As was true in Locke , a prophylactic rule
against the use of public funds for houses of worship is a
permissible accommodation of these weighty interests. The rule has
a historical pedigree identical to that of the provision in Locke . Almost all of the States that ratified the Religion
Clauses operated under this rule. See 540 U. S., at 723. Seven
had placed this rule in their State Constitutions.[ 7 ] Three enforced it by statute or in
practice.[ 8 ] Only one had not
yet embraced the rule.[ 9 ]
Today, thirty-eight States have a counterpart to Missouri’s Article
I, §7.[ 10 ] The provisions,
as a general matter, date back to or before these States’ original
Constitutions.[ 11 ] That so
many States have for so long drawn a line that prohibits public
funding for houses of worship, based on principles rooted in this
Nation’s understanding of how best to foster religious liberty,
supports the conclusion that public funding of houses of worship
“is of a different ilk.” Locke , 540 U. S., at 723.

															And as in Locke , Missouri’s Article I,
§7, is closely tied to the state interests it protects. See Locke , 540 U. S., at 724 (describing the program at
issue as “go[ing] a long way toward including religion in its
benefits”). A straightforward reading of Article I, §7, prohibits
funding only for “any church, sect, or denomination of religion, or
in aid of any priest, preacher, minister or teacher thereof, as
such.” The Missouri courts have not read the State’s Constitution
to reach more broadly, to prohibit funding for other religiously
affiliated institutions, or more broadly still, to prohibit the
funding of religious believers. See, e.g., Saint Louis Univ. v. Masonic Temple Assn. of St. Louis , 220 S. W. 3d 721,
726 (Mo. 2007) (“The university is not a religious institution
simply because it is affiliated with the Jesuits or the Roman
Catholic Church”). The Scrap Tire Program at issue here proves the
point. Missouri will fund a religious organization not “owned or
controlled by a church,” if its “mission and activities are secular
(separate from religion, not spiritual in) nature” and the funds
“will be used for secular (separate from religion; not spiritual)
purposes rather than for sectarian (denominational, devoted to a
sect) purposes.” App. to Brief for Petitioner 3a; see also Tr. of
Oral Arg. 33–35. Article I, §7, thus stops Missouri only from
funding specific entities, ones that set and enforce religious
doctrine for their adherents. These are the entities that most
acutely raise the establishment and free exercise concerns that
arise when public funds flow to religion.

															Missouri has recognized the simple truth that,
even absent an Establishment Clause violation, the transfer of
public funds to houses of worship raises concerns that sit exactly
between the Religion Clauses. To avoid those concerns, and only
those concerns, it has prohibited such funding. In doing so, it
made the same choice made by the earliest States centuries ago and
many other States in the years since. The Constitution permits this
choice.

															3

															In the Court’s view, none of this matters. It
focuses on one aspect of Missouri’s Article I, §7, to the exclusion
of all else: that it denies funding to a house of worship, here the
Church, “simply because of what it [i]s—a church.” Ante, at
12. The Court describes this as a constitutionally impermissible
line based on religious “status” that requires strict scrutiny. Its
rule is out of step with our precedents in this area, and wrong on
its own terms.

															The Constitution creates specific rules that
control how the government may interact with religious entities.
And so of course a government may act based on a religious entity’s
“status” as such. It is that very status that implicates the
interests protected by the Religion Clauses. Sometimes a religious
entity’s unique status requires the government to act. See Hosanna-Tabor , 565 U. S., at 188–190. Other times, it
merely permits the government to act. See Part III–A, supra .
In all cases, the dispositive issue is not whether religious
“status” matters—it does, or the Religion Clauses would not be at
issue—but whether the government must, or may, act on that
basis.

															Start where the Court stays silent. Its opinion
does not acknowledge that our precedents have expressly approved of
a government’s choice to draw lines based on an entity’s religious
status. See Amos , 483 U. S., at 339; Walz , 397
U. S., at 680; Locke , 540 U. S., at 721. Those
cases did not deploy strict scrutiny to create a presumption of
unconstitutionality, as the Court does today. Instead, they asked
whether the government had offered a strong enough reason to
justify drawing a line based on that status. See Amos , 483
U. S., at 339 (“[W]e see no justification for applying strict
scrutiny”); Walz , 397 U. S., at 679 (rejecting
criticisms of a case-by-case approach as giving “too little weight
to the fact that it is an essential part of adjudication to draw
distinctions, including fine ones, in the process of interpreting
the Constitution”); Locke , 540 U. S., at 725 (balancing
the State’s interests against the aspiring minister’s).

															The Court takes two steps to avoid these
precedents. First, it recasts Locke as a case about a
restriction that prohibited the would-be minister from “us[ing] the
funds to prepare for the ministry.” Ante, at 12. A faithful
reading of Locke gives it a broader reach. Locke stands for the reasonable proposition that the government may, but
need not, choose not to fund certain religious entities (there,
ministers) where doing so raises “historic and substantial”
establishment and free exercise concerns. 540 U. S., at 725.
Second, it suggests that this case is different because it involves
“discrimination” in the form of the denial of access to a possible
benefit. Ante, at 11. But in this area of law, a decision to
treat entities differently based on distinctions that the Religion
Clauses make relevant does not amount to discrimination.[ 12 ] To understand why, keep in mind
that “the Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embraces the
right to select any religious faith or none at all.” Wallace v. Jaffree , 472 U. S. 38 –53 (1985). If the denial of a
benefit others may receive is discrimination that violates the Free
Exercise Clause, then the accommodations of religious entities we
have approved would violate the free exercise rights of
nonreligious entities. We have, with good reason, rejected that
idea, see, e.g., Amos , 483 U. S., at 338–339, and
instead focused on whether the government has provided a good
enough reason, based in the values the Religion Clauses protect,
for its decision.[ 13 ]

															The Court offers no real reason for rejecting
the balancing approach in our precedents in favor of strict
scrutiny, beyond its references to discrimination. The Court’s
desire to avoid what it views as discrimination is understand-able.
But in this context, the description is particularly inappropriate.
A State’s decision not to fund houses of worship does not disfavor
religion; rather, it represents a valid choice to remain secular in
the face of serious establishment and free exercise concerns. That
does not make the State “atheistic or antireligious.” County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter , 492 U. S. 573, 610 (1989) . It means
only that the State has “establishe[d] neither atheism nor religion
as its official creed.” Ibid. The Court’s conclusion “that
the only alternative to governmental support of religion is
governmental hostility to it represents a giant step backward in
our Religion Clause jurisprudence.” Id. , at 652, n. 11
(Stevens, J., concurring in part and dissenting in part).

															At bottom, the Court creates the following rule
today: The government may draw lines on the basis of religious
status to grant a benefit to religious persons or entities but it
may not draw lines on that basis when doing so would further the
interests the Religion Clauses protect in other ways. Nothing
supports this lopsided outcome. Not the Religion Clauses, as they
protect establishment and free exercise interests in the same
constitutional breath, neither privileged over the other. Not
precedent, since we have repeatedly explained that the Clauses
protect not religion but “the individual’s freedom of conscience,” Jaffree , 472 U. S., at 50—that which allows him to
choose religion, reject it, or remain undecided. And not reason,
because as this case shows, the same interests served by lifting
government-imposed burdens on certain religious entities may
sometimes be equally served by denying government-provided benefits
to certain religious entities. Cf. Walz , 397 U. S., at
674 (entanglement); Amos , 483 U. S., at 336 (influence
on religious activities).

															Justice Breyer’s concurrence offers a narrower
rule that would limit the effects of today’s decision, but that
rule does not resolve this case. Justice Breyer, like the Court,
thinks that “denying a generally available benefit solely on
account of religious identity imposes a penalty on the free
exercise of religion that can be justified only by a state interest
of the highest order,” ante, at 6 (majority opinion)
(internal quotation marks omitted). See ante, at 1–2
(Breyer, J., concurring in judgment). Few would disagree with a
literal interpretation of this statement. To fence out religious
persons or entities from a truly gener-ally available public
benefit—one provided to all, no questions asked, such as police or
fire protections—would violate the Free Exercise Clause. Accord, Rosenberger , 515 U. S., at 879, n. 5 (Souter, J.,
dissenting). This explains why Missouri does not apply its
constitutional provision in that manner. See Tr. of Oral Arg.
35–36. Nor has it done so here. The Scrap Tire Program offers not a
generally available benefit but a selective benefit for a few
recipients each year. In this context, the comparison to truly
generally available benefits is inapt. Cf. Everson , 330
U. S., at 61, n. 56 (Rutledge, J., dissenting) (The Religion
Clauses “forbi[d] support, not protection from interference or
destruction”).

															On top of all of this, the Court’s application
of its new rule here is mistaken. In concluding that Missouri’s
Article I, §7, cannot withstand strict scrutiny, the Court
describes Missouri’s interest as a mere “policy preference for
skating as far as possible from religious establishment concerns.” Ante, at 14. The constitutional provisions of thirty-nine
States—all but invalidated today—the weighty interests they
protect, and the history they draw on deserve more than this
judicial brush aside.[ 14 ]

															Today’s decision discounts centuries of history
and jeopardizes the government’s ability to remain secular. Just
three years ago, this Court claimed to understand that, in this
area of law, to “sweep away what has so long been settled would
create new controversy and begin anew the very divisions along
religious lines that the Establishment Clause seeks to prevent.” Town of Greece v. Galloway , 572 U. S. ___, ___
(2014) (slip op., at 8). It makes clear today that this principle
applies only when preference suits.

															IV

															The Religion Clauses of the First Amendment
contain a promise from our government and a backstop that disables
our government from breaking it. The Free Exercise Clause extends
the promise. We each retain our inalien-able right to “the free
exercise” of religion, to choose for ourselves whether to believe
and how to worship. And the Establishment Clause erects the
backstop. Government cannot, through the enactment of a “law
respecting an establishment of religion,” start us down the path to
the past, when this right was routinely abridged.

															The Court today dismantles a core protection for
religious freedom provided in these Clauses. It holds not just that
a government may support houses of worship with taxpayer funds, but
that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so when-ever it decides to create a funding
program. History shows that the Religion Clauses separate the
public treasury from religious coffers as one measure to secure the
kind of freedom of conscience that benefits both religion and
government. If this separation means anything, it means that the
government cannot, or at the very least need not, tax its citizens
and turn that money over to houses of worship. The Court today
blinds itself to the outcome this history requires and leads us
instead to a place where separation of church and state is a
constitutional slogan, not a constitutional commitment. I
dissent. Notes 1 Government aid that has
the “purpose” or “effect of advancing or inhibiting religion”
violates the Establishment Clause. Agostini v. Felton , 521 U. S. 203 –223 (1997) (internal quotation
marks omitted). Whether government aid has such an effect turns on
whether it “result[s] in governmental indoctrination,” “define[s]
its recipients by reference to religion,” or “create[s] an
excessive entanglement” between the government and religion. Id., at 234; see also id., at 235 (same
considerations speak to whether the aid can “reasonably be viewed
as an endorsement of religion”). 2 Because Missouri decides
which Scrap Tire Program applicants receive state funding, this
case does not implicate a line of decisions about indirect aid
programs in which aid reaches religious institutions “only as a
result of the genuine and independent choices of private
individuals.” Zelman v. Simmons-Harris , 536
U. S. 639, 649 (2002) . 3 The Scrap Tire Program
requires an applicant to certify, among other things, that its
mission and activities are secular and that it will put program
funds to only a secular use. App. to Pet. for Cert. 127a–130a. From
the record, it is unclear whether the Church provided any part of
this certification. Id. , at 127a–130a. In any case, the
Church has not offered any such assurances to this
Court. 4 This case highlights the
weaknesses of the rule. The Scrap Tire Program ranks more highly
those applicants who agree to generate media exposure for Missouri
and its program and who receive the endorsement of local solid
waste management entities. That is, it prefers applicants who agree
to advertise that the government has funded it and who seek out the
approval of government agencies. To ignore this result is to ignore
the type of state entanglement with, and endorsement of, religion
the Establishment Clause guards against. 5 This Court did not hold
that the Religion Clauses applied, through the Fourteenth
Amendment, to the States until the 1940’s. See Cantwell v. Connecticut , 310 U. S. 296 (1940) (Free Exercise
Clause); Everson v. Board of Ed. of Ewing , 330
U. S. 1 (1947) (Establishment Clause). When the States
dismantled their religious establishments, as all had by the
1830’s, they did so on their own accord, in response to the lessons
taught by their experiences with religious
establishments. 6 To this, some might point
out that the Scrap Tire Program at issue here does not impose an
assessment specifically for religious entities but rather directs
funds raised through a general taxation scheme to the Church. That
distinction makes no difference. The debates over religious
assessment laws focused not on the means of those laws but on their
ends: the turning over of public funds to religious entities. See, e.g., Locke v. Davey , 540 U. S. 712, 723 (2004)
. 7 See N. J. Const., Art.
XVIII (1776), in 5 Thorpe 2597 (“[N]or shall any person, within
this Colony, ever be obliged to pay tithes, taxes, or any other
rates, for the purpose of building or repairing any other church or
churches, place or places of worship, or for the maintenance of any
minister or ministry, contrary to what he believes to be right, or
has deliberately or voluntarily engaged himself to perform”); N. C.
Const., Art. XXXIV (1776), in id. , at 2793 (“[N]either shall
any person, on any pretence whatsoever, . . . be obliged to pay,
for the purchase of any glebe, or the building of any house of
worship, or for the maintenance of any minister or ministry,
contrary to what he believes right, or has voluntarily and
personally engaged to perform”); Pa. Const., Art. IX, §3 (1790), in id. , at 3100 (“[N]o man can of right be compelled to attend,
erect, or support any place of worship, or to maintain any
ministry, against his consent”); S. C. Const., Art. XXXVIII (1778),
in 6 id ., at 3257 (“No person shall, by law, be obliged to
pay towards the maintenance and support of a religious worship that
he does not freely join in, or has not voluntarily engaged to
support”); Vt. Const., ch. 1, Art. III (1786), in id. , at
3752 (“[N]o man ought, or of right can be compelled to attend any
religious worship, or erect, or support any place of worship, or
maintain any minister, contrary to the dictates of his
conscience”). 8 See Virginia, Act for
Establishing Religious Freedom, in 5 The Founders’ Constitution 85
(P. Kurland & R. Lerner eds. 1987); Curry 211–212 (Rhode Island
never publicly funded houses of worship); Esbeck, Dissent and
Disestablishment: The Church-State Settlement in the Early American
Republic, 2004 B. Y. U. L. Rev. 1385, 1489–1490 (Maryland never
invoked its constitutional authorization of religious
assessments). 9 See N. H. Const.,
pt. 1, Arts. I, VI (1784), in 4 Thorpe 2453, 2454. 10 See
Ala. Const., Art. I, §3; Ariz. Const., Art. II, §12, Art. IX,
§10; Ark. Const., Art. II, §24; Cal. Const., Art. XVI, §5; Colo.
Const., Art. II, §4, Art. IX, §7; Conn. Const., Art. Seventh; Del.
Const., Art. I, §1; Fla. Const., Art. I, §3; Ga. Const., Art. I,
§2, para. VII; Idaho Const., Art. IX, §5; Ill. Const., Art. I, §3,
Art. X, §3; Ind. Const., Art. 1, §§4, 6; Iowa Const., Art. 1, §3;
Ky. Const. §5; Md. Const., Decl. of Rights Art. 36; Mass. Const.
Amdt., Art. XVIII, §2; Mich. Const., Art. I, §4; Minn. Const., Art.
I, §16; Mo. Const., Art. I, §§6, 7, Art. IX, §8; Mont. Const., Art.
X, §6; Neb. Const., Art. I, §4; N. H. Const., pt. 2, Art. 83; N. J.
Const., Art. I, §3; N. M. Const., Art. II, §11; Ohio Const., Art.
I, §7; Okla. Const., Art. II, §5; Ore. Const., Art. I, §5; Pa.
Const., Art. I, §3, Art. III, §29; R. I. Const., Art. I, §3; S. D.
Const., Art. VI, §3; Tenn. Const., Art. I, §3; Tex. Const., Art. I,
§§6, 7; Utah Const., Art. I, §4; Vt. Const., ch. I, Art. 3; Va.
Const., Art. I, §16, Art. IV, §16; Wash. Const., Art. I, §11; W.
Va. Const., Art. III, §15; Wis. Const., Art. I, §18; Wyo. Const.,
Art. I, §19, Art. III, §36. 11 See
Ala. Const., Art. I, §3 (1819), in 1 Thorpe 97; Ariz. Const., Art.
II, §12, Art. IX, §10 (1912); Ark. Const., Art. II, §3 (1836),
in 1 Thorpe 269; Cal. Const., Art. IX, §8 (1879), in id. , at
432; Colo. Const., Art. II, §4, Art. V, §34 (1876), in id .,
at 474, 485; Conn. Const., Art. First, §4, Art. Seventh, §1 (1818),
in id., at 537, 544–545; Del. Const., Art. I, §1 (1792);
Fla. Const., Decl. of Rights §6 (1885), in 2 Thorpe 733; Ga.
Const., Art. I, §1, para. XIV (1877), in id., at 843; Idaho
Const., Art. I, §4, Art. IX, §5 (1889), in id., at 919,
936–937; Ill. Const., Art. VIII, §3 (1818) and (1870), in id., at 981, 1035; Ind. Const., Art. 1, §3 (1816), Art. 1,
§6 (1851), in id. , at 1056, 1074; Iowa Const., Art. 1, §3
(1846), in id., at 1123; Ky. Const., Art. XIII, §5 (1850),
in 3 id. , at 1312; Md. Const., Decl. of Rights Art. 36
(1867), in id., at 1782; Mass. Const. Amdt., Art. XVIII
(1855), in id., at 1918, 1922; Mass. Const. Amdt., Art.
XVIII (1974); Mich. Const., Art. 1, §4 (1835), Art. IV, §40 (1850),
in 4 Thorpe 1031, 1050; Minn. Const., Art. I, §16 (1857), in id. , at 1092; Enabling Act for Mo., §4 (1820), Mo. Const.,
Art. I, §10 (1865), Art. II, §7 (1875), in id., at
2146–2147, 2192, 2230; Mont. Const., Art. XI, §8 (1889), in id., at 2323; Neb. Const., Art. I, §16 (1866), in id., at 2350; N. H. Const., pt. 2, Art. 83 (1877); N. J.
Const., Art. XVIII (1776), in 5 Thorpe 2597; N. M. Const., Art. II,
§11 (1911); Ohio Const., Art. VIII, §3 (1802), in 5 Thorpe 2910;
Okla. Const., Art. II, §5 (1907), in H. Snyder, The Constitution of
Oklahoma 21 (1908); Ore. Const., Art. I, §5 (1857), in 5 Thorpe
2098; Pa. Const., Art. IX, §3 (1790), Art. III, §18 (1873), in id. , at 3100, 3120; R. I. Const., Art. I, §3 (1842), in 6 id. , at 3222–3223; S. D. Const., Art. VI, §3 (1889), in id. , at 3370; Tenn. Const., Art. XI, §3 (1796), in id., at 3422; Tex. Const., Art. I, §4 (1845), Art. I, §7
(1876), in id., at 3547–3548, 3622; Utah Const., Art. I, §4
(1895), in id., at 3702; Vt. Const., ch. I, Art. III (1777),
in id., at 3740; Va. Const., Art. III, §11 (1830), Art. IV,
§67 (1902), in 7 id. , at 3824, 3917; Wash. Const., Art. I,
§11 (1889), in id. , at 3874; W. Va. Const., Art. II, §9
(1861–1863), in id ., at 4015; Wis. Const., Art. I, §18
(1848), in id., at 4078–4079; Wyo. Const., Art. I, §19, Art.
III, §36 (1889), in id., at 4119, 4124. 12 This
explains, perhaps, the Court’s reference to an Equal Protection
Clause precedent, rather than a Free Exercise Clause precedent, for
this point. See ante, at 11 (citing Northeastern Fla.
Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656 (1993) ). 13 No
surprise then that, despite the Court’s protests to the contrary,
no case has applied its rigid rule. McDaniel v. Paty ,
435 U. S. 618 (1978) , on which the Court relies most heavily,
mentioned “status” only to distinguish laws that deprived a person
“of a civil right solely because of their religious beliefs.” Id., at 626–627 (plurality opinion). In Torcaso v. Watkins , 367 U. S. 488 (1961) , the Court invalidated a
law that barred persons who refused to state their belief in God
from public office without “evaluat[ing] the interests assertedly
justifying it.” McDaniel , 435 U. S., at 626 (plurality
opinion). That approach did not control in McDaniel , which
involved a state constitutional provision that barred ministers
from serving as legislators, because “ministerial status” was
defined “in terms of conduct and activity,” not “belief.” Id., at 627. The Court thus asked whether the
“anti-establishment interests” the State offered were strong enough
to justify the denial of a constitutional right—to serve in public
office—and concluded that they were not. Id. , at 627–629.
Other references to “status” in our cases simply recount McDaniel . See, e.g., Church of Lukumi Babalu Aye,
Inc. v. Hialeah , 508 U. S. 520, 533 (1993) ; Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 877 (1990) . 14 In
the end, the soundness of today’s decision may matter less than
what it might enable tomorrow. The principle it establishes can be
manipulated to call for a similar fate for lines drawn on the basis
of religious use. See ante , at 1–3 (Gorsuch, J., concurring
in part); see also ante , at 1–2 (Thomas, J., concurring in
part) (going further and suggesting that lines drawn on the basis
of religious status amount to per se unconstitutional
discrimination on the basis of religious belief ). It is
enough for today to explain why the Court’s decision is wrong. The
error of the concurrences’ hoped-for decisions can be left for
tomorrow. See, for now, School Dist. of Abington Township v. Schempp , 374 U. S. 203, 226 (1963) (“While the Free
Exercise Clause clearly prohibits the use of state action to deny
the rights of free exercise to anyone , it has never meant
that a majority could use the machinery of the State to practice
its beliefs”).

Summary: The Missouri Department of Natural Resources offers grants to help schools and daycare centers purchase rubber playground surfaces made from recycled tires. Trinity Lutheran Church, which operates a preschool and daycare center, applied for such a grant but was denied due to a policy that disqualifies churches and religious organizations from receiving these grants. The Supreme Court ruled that the Department's policy violated Trinity Lutheran Church's rights under the Free Exercise Clause of the First Amendment, which protects religious freedom. The Court held that the policy discriminated against the church based on its religious status and denied it a generally available public benefit.