September 2017 - Parks & Recreation - 38

L AW R E V I E W

the court found the department's action
did not moot this case. In so doing, the
court noted: " such voluntary cessation
of a challenged practice does not moot
a case unless subsequent events make
it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur. " In this particular instance, the parties agreed that
nothing would prevent the department
from reinstating its policy in the future
based on the source of the department's

lenges under the Free Exercise Clause,
the court would distinguish between
laws that are " neutral and generally applicable without regard to religion " and
laws that " single out the religious for
disfavored treatment. " Accordingly, the
Supreme Court noted that the Free Exercise Clause would prohibit governments
from " discriminating in the distribution
of public benefits based upon religious
status or sincerity. "
Specifically, in the opinion of the Su-

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.

original policy in the Missouri Constitution. Accordingly, a real controversy
and dispute remained for the Supreme
Court to determine whether the existing
interpretation of the Missouri Constitution posed an unconstitutional irreconcilable conflict with the First Amendment to the United States Constitution.
Free Exercise Clause
As cited by the Supreme Court: " The
First Amendment provides, in part, that
'Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.' " In
this particular instance, the Church and
Department both agreed that " the Establishment Clause of that Amendment
does not prevent Missouri from including Trinity Lutheran in the Scrap Tire
Program. " That being said, the Supreme
Court recognized that " there is 'play in
the joints' between what the Establishment Clause permits and the Free Exercise Clause compels. "
In considering constitutional chal36

Parks & Recreation

preme Court, it would effectively penalize the free exercise of constitutional
liberties to " condition the availability of
benefits upon a recipient's willingness
to surrender his religiously impelled status. " In this particular instance, the Supreme Court found: " The Department's
policy expressly discriminates against
otherwise eligible recipients by disqualifying them from a public benefit solely
because of their religious character " :
[T]he 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 Lutheran is free to continue operating as a church...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...the
State has punished the free exercise
of religion.

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In response, the department contended " 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 " :
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.
The Supreme Court agreed " 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. " That being
said, the Supreme Court noted the department itself had acknowledged the
Free Exercise Clause protects against
" indirect coercion or penalties on the
free exercise of religion, not just outright
prohibitions. " In so doing, the Supreme
Court reiterated the principle that the liberties of religion and expression may not
be infringed by the denial of or placing
conditions upon a benefit or privilege.
In this particular instance, the Supreme Court noted: " Trinity Lutheran
is not claiming any entitlement to a subsidy. " On the contrary, the court found
Trinity Lutheran simply " asserts a right
to participate in a government benefit
program without having to disavow its
religious character. " As characterized by
the court, in this case, the discrimination
against religious exercise was not the denial of a grant, but the refusal to allow
the church " to compete with secular organizations for a grant, " solely because
Trinity Lutheran is a church.
In the opinion of the Supreme Court,
the " imposition of such a condition
September 2017 - Parks & Recreation

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