The legacy of Trinity Lutheran for religious liberty

July 14, 2017

The Supreme Court’s 7-2 ruling for Trinity Lutheran Church in Trinity Lutheran Church of Columbia v. Comer is a monumental decision that will have implications for years to come. Interestingly, even left-of-center Justices Kagan and Breyer sided with the majority, holding that Missouri’s blanket constitutional ban of any government funds to religious institutions was unconstitutional. Understanding the future implications of Trinity is vital for religious organizations.

"Play in the Joints"

But it is impossible to see the significance of Trinity Lutheran without understanding the Court’s 2004 decision in Locke v. Davey. In that case, the State of Washington had established a fund to assist eligible students with college scholarships. The scholarships could be used for any fields of study, except for those that pursuing a degree in religious devotion. Joshua Davey, a student who was awarded the scholarship, challenged the state’s restriction on religious instruction when he was denied the scholarship after deciding to pursue a degree in pastoral ministries.

The Court considered the two religion clauses in the First Amendment: the Establishment and the Free Exercise Clauses. The Establishment Clause prohibits the establishment of a religion by the government, while the Free Exercise Clause restricts the government from unreasonably prohibiting an individual from practicing their faith.

The Court held that the state could restrict the funds from going to Davey because the state’s restriction did not violate Davey’s free exercise rights. At the same time, the Court noted that the state’s restriction was not compelled by the Establishment Clause, that is, the state could have provided Davey the scholarship without violating the Establishment Clause. As a result, the Court argued that the state had some measure of discretion with its scholarship program, as this situation fell within the “play in the joints” between the Establishment Clause and the Free Exercise Clause.

The Court’s discussion of the “play in the joints” in Trinity Lutheran

As could have been reasonably expected, this concept—the “play in the joints”—was understood differently by different courts. We will discuss those cases in a moment, but first, let us consider how the Court handled Locke v. Davey at length in its decision in Trinity Lutheran.

The issue in Trinity Lutheran centered around a Blaine Amendment provision in Missouri’s state constitution, which restricted any government funds to religious institutions. Missouri used this provision to deny scrap tire surface materials as part of a government grant to a Christian school run by Trinity Lutheran Church, even though the grant would be used to further a nonreligious purpose of ensuring children’s safety by improving the school’s playground.

The "play in the joints" concept was a central issue in Trinity Lutheran. On the one hand, the state of Missouri argued that the state's denial of the grant to religious institutions fell into the discretionary area allowed by the "play in the joints" between the two religion clauses. On the other hand, Trinity Lutheran Church argued that Missouri's actions fell outside of this discretionary area by violating the Free Exercise Clause, denying generally available government funds used for a nonreligious purpose to an organization based solely upon their status as a church.

Ultimately, the Supreme Court held that the denial of the grant to the Church violated the Free Exercise Clause and that the state did not have the authority under the constitution to exclude religious organizations from receiving publicly available benefits. But the Court did not directly overrule Locke, instead distinguishing the case and characterizing Locke’s holding narrowly.

How will Trinity Lutheran impact past precedents?

After Trinity Lutheran, what is left of Locke? Lower courts have had many opportunities to decide “play in the joints” cases in the years since LockeTrinity Lutheran?

In University of Cumberlands v. Pennybacker (2010), an accredited religious university was denied a $10 million grant from the commonwealth of Kentucky for the construction of a pharmacy school. The decision to deny the grant was based on Kentucky’s  Blaine Amendment denying government funds to all religious institutions. Applying the “play in the joints” test, the Supreme Court of Kentucky held that the state constitutional provision fell within the area of lawful discretion. Thus, the denial was upheld.

After Trinity Lutheran, Pennybacker might come out differently. Using the reasoning in Trinity Lutheran, the university could now make an argument that Kentucky’s refusal to give the university publicly available government funds they had otherwise qualified for is unconstitutional.

Trinity Lutheran may also impact government vouchers for private religious school education. In Eulitt v. Maine, Dept. of Educ. (2004), the state of Maine had a program that provided vouchers for children's education to the school of their family’s choice, whether public or private. However, Maine refused to pay for John and Belinda Eulitt’s daughter’s education at a private Catholic high school, solely because it was a religious school. The First Circuit held that this refusal fell within the “play in the joints” of Locke by not violating the Free Exercise Clause.

Interestingly, two years prior to Eulitt, the Supreme Court in Zelman v. Simmons-Harris (2002) held that government vouchers to private religious schools were constitutional if the parents of the children receiving the vouchers decided to send their kids to those schools. Moreover, Locke allowed scholarship funds to go toward education at religious schools, so long as the degree was not in devotional theology.

Eulitt presents a unique twist on Zelman and Trinity Lutheran that will play out in future decisions. While Zelman held that it is constitutional for the government to fund religious education if the school is chosen by the student’s guardians, Eulitt dealt with whether the government is compelled to fund private religious education on an equal footing with private nonreligious education. Additionally, while Trinity Lutheran focused on solely nonreligious government benefits (improving a playground), Eulitt deals with a government benefit that has both religious and nonreligious effects. Specifically, this benefit improves the education of children in the community (nonreligious benefit), but does so along with religious educational classes.

Essentially, time will tell whether the combined rulings of Zelman and Trinity Lutheran will require state governments to fund private religious schooling on equal grounds with private nonreligious schooling. Regardless of whether Trinity Lutheran’s implications run to that point, it will still mean that religious schools are on an equal playing field for government benefits with solely nonreligious purposes.

What will Trinity Lutheran’s legacy be?

Ultimately, Trinity Lutheran could threaten the very existence of any Blaine Amendment anywhere in the country. Certainly, this was Justice Sotomayor’s concern in her dissent: “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.”

Only time and subsequent cases will determine the legacy of Trinity Lutheran. But if we can glean anything from the way that Chief Justice Roberts concluded his opinion, the Chief was deeply concerned with the implications in this case. The Chief quoted from a speech given by a legislator before the Maryland Assembly condemning a state law prohibiting Jews from serving in public office. Drawing a straight line from that situation to the case before him, he then wrote: “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.”

ERLC Legal Clerk Chase Stevens contributed to this essay.

Travis Wussow

Travis Wussow serves as the Vice President for Public Policy and General Counsel. Travis led the ERLC’s first international office located in the Middle East prior to joining the Washington DC office. He received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24