Clarifying the Bounds of Locke
Missouri gives grants to permit schools, daycares, and other organizations to purchase recycled tires to resurface playgrounds. Trinity Lutheran Church applied for a grant for its licensed preschool so that it could upgrade its current gravel playground to a safer, rubberized one. Out of 44 applications in 2012, Trinity Lutheran’s ranked fifth, and 14 projects were funded.
However, Trinity Lutheran was not one of them. Missouri denied the grant on the ground that its state constitution prohibits direct aid to religious organizations.
Trinity Lutheran sued in federal court, arguing that denying it the playground-resurfacing grant violated the federal Free Exercise Clause, Establishment Clause, and Equal Protection Clause. The district court disagreed, granting the State’s motion to dismiss. The Eighth Circuit affirmed in a 2-1 decision that turned largely on how to interpret Locke v. Davey, 540 U.S. 712 (2004). See Trinity Lutheran Church of Columbia v. Pauley, 788 F.3d 779 (8th Cir. 2015).
By a 7-2 majority, then-Chief Justice Rehnquist upheld a scholarship program that prohibited students from using these public funds to pursue a degree in devotional theology, a course of study that the Court characterized as “akin to a religious calling.” Locke, 540 U.S. at 715. The Court held that the program fit within the “play in the joints” between the Free Exercise and the Establishment Clauses. It reached this conclusion, in part, because the scholarship program “goes a long way toward including religion in its benefits.” Id. at 724. For instance, it permits students to attend pervasively sectarian universities and take devotional theology courses. Id. at 724-25. The Court allowed the legislatively-created prohibition on majoring in devotional theology because it found this “relatively minor burden” was justified by a “historic and substantial state interest” of not funding “an essentially religious endeavor,” i.e., the training of clergy. Id. at 721, 725.
Ever since Locke, lower courts have struggled to determine its boundaries. See e.g., Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1254 (10th Cir. 2008) (“The precise bounds of the Locke holding . . . are far from clear.”). On January 15, 2016, the U.S. Supreme Court agreed to hear the Trinity Lutheran case. The question presented for the Court is: “Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” Many predict the Court will finally offer long-needed guidance on the bounds of Locke. To do so, however, may mean striking down two of Missouri’s state constitutional provisions. See Mo. Const. art. I, sec 7; art. IX, sec. 8.