# Trinity Lutheran Church of Columbia, Inc. v. Comer **URL:** \ **Category:** Great Debates\ **Created:** [April 7, 2017, 5:15pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994 "2017-04-07T17:15:53Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 22, 2017, 4:01pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/181 "2017-04-22T16:01:34Z")
> [@Tom\_Terrific](#): > > Not really wanting to hijack the thread, but what would happen if the Circuit Courts of Appeal did say exactly that? The Supremes are wrong in this case. Wouldn’t that almost ensure that the Supreme Court would revisit the case? A lower court simply doesn’t have the power to say that the Supreme Court was wrong. The Supreme Court states what the law is. If a lower court judge lost his mind and made a ruling on the basis that he believed prior Supreme Court decisions were wrong, the Supreme Court would likely GVR his decision. (That is in a summary fashion without oral argument: Grant certiorari, Vacate the decision, Remand the case with instructions to follow Supreme Court precedent. We will decide if it needs overruling, thank you very much). ---
**Author:** ![Tom\_Terrific](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tom_terrific/32/342_2.png) [@Tom\_Terrific](https://boards.straightdope.com/u/Tom_Terrific)\ **Post date:** [April 22, 2017, 5:24pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/182 "2017-04-22T17:24:44Z")
OK, thanks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 22, 2017, 6:22pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/183 "2017-04-22T18:22:54Z")
> [@Tom\_Terrific](#): > > Not really wanting to hijack the thread, but what would happen if the Circuit Courts of Appeal did say exactly that? The Supremes are wrong in this case. Wouldn’t that almost ensure that the Supreme Court would revisit the case? To add to UV’s excellent answer, this is why what typically happens is that the lower court seizes on some factual difference by which to _distinguish_ the cases. “While the _Jones_ decision is of course good law, we note that Smith was arrested on a Saturday, not a Friday, and so we find that Jones is not controlling.” Much more subtly than my example, of course. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 22, 2017, 7:33pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/184 "2017-04-22T19:33:20Z")
> [@Bricker](#): > > To add to UV’s excellent answer, this is why what typically happens is that the lower court seizes on some factual difference by which to _distinguish_ the cases. “While the _Jones_ decision is of course good law, we note that Smith was arrested on a Saturday, not a Friday, and so we find that Jones is not controlling.” > > Much more subtly than my example, of course. Right. In addition a judge may use the “subsequent cases have cast doubt on the validity of the opinion” argument. We saw this in the same sex marriage cases. In the early 1970s a man challenged a Minnesota law that prohibited him from marrying another man. The Supreme Court refused to review the case for “want of a substantial federal question.” Baker v. Nelson. Under the rules in place at that time, this denial acted as a decision on the merits and binding precedent. So when these same sex marriage cases were coming up through the courts, there was a good argument that the lower courts had to simply apply Baker and be done with it. However, what these courts did (rightly or wrongly depending on your point of view) is held that several Supreme Court cases in recent years, like Romer, Lawrence, and Windsor had effectively cast doubt on the continuing validity of Baker, effectively saying that the Supreme Court had overruled Baker without having specifically overruled it. Most of the time ruling in that way gets a lower court judge a stern opinion against him, but it worked in Obergefell when the Supreme Court did expressly overrule Baker. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 24, 2017, 1:27pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/185 "2017-04-24T13:27:40Z")
> [@Iggy](#): > > Or instead we could step back and realize that government cannot take a negative action against an organization or person solely on the basis of religious affiliation or lack thereof. Then we let the new church connect to the utilities on the same basis we would permit a commercial establishment to make that connection. What negative action? They’re not persecuting religious people by refusing to give them money, that’s the same backwa ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 24, 2017, 1:28pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/186 "2017-04-24T13:28:47Z")
> [@Iggy](#): > > Or instead we could step back and realize that government cannot take a negative action against an organization or person solely on the basis of religious affiliation or lack thereof. Then we let the new church connect to the utilities on the same basis we would permit a commercial establishment to make that connection. What negative action? They’re not persecuting religious people by refusing to give them money, that’s the same backwards logic that leads the Christian majority in this country to proclaim that they are ‘oppressed’ when everyone doesn’t defer to them. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 24, 2017, 2:06pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/187 "2017-04-24T14:06:19Z")
> [@](#): > > Quoth **Damuri Ajashi** : > > I don’t think this was ever a very close call except in the minds of those who were already predisposed to create a Mexican wall between church and state. Well, there is still that states’ rights issue I mentioned. While overturning a portion of a state constitution is certainly something that the Supreme Court can do, it’s not something they should do lightly. It’s one thing to say that the federal government shouldn’t erect such a strict wall between church and state; it’s another to say that the states can’t, either. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 24, 2017, 2:07pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/188 "2017-04-24T14:07:00Z")
> [@Damuri\_Ajashi](#): > > Where are you getting 3%? That is one of the most nonsense numbers in the entire abortion debate and it undermines the credibility of the pro-choice side of the debate when they fudge numbers like that. Sorry, that should have said 15% to 37%. But you ignored the rest of my post. > [@Iggy](#): > > That would seem to prohibit spending public funds fighting a fire at a religiously owned school or in investigating a murder at a religiously owned university. That is just off the deep end hostile. Moreover, Trinity has taken the position throughout this litigation that its challenge to the provision is as applied, not facial. So firefighting services aren’t relevant. If and when Missouri or some other governmental actor starts refusing fire services to religious institutions, we can talk about whether such an action would be constitutional. So far, the state seems to have read “with the exception of fire, police and utility services” into the constitutional provision, however, or has been directed to do so by the Missouri Supreme Court perhaps. SCOTUS is required to defer to the MSC insofar as resolution of this case turns on the meaning of the Missouri constitutional provision, and the MSC apparently does not find this provision problematic. so firefighting services aren’t relevant even in the context of a facial challenge. > [@Damuri\_Ajashi](#): > > I don’t think this was ever a very close call except in the minds of those who were already predisposed to create a Mexican wall between church and state. Since the state’s position was upheld by the Eight Circuit and a SCOTUS decision in favor of the church would be a clear break with existing precedent, I don’t see how you could say it would not be a “close call” unless the state wins. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 24, 2017, 5:24pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/189 "2017-04-24T17:24:30Z")
> [@CandidGamera](#): > > What negative action? They’re not persecuting religious people by refusing to give them money, that’s the same backwards logic that leads the Christian majority in this country to proclaim that they are ‘oppressed’ when everyone doesn’t defer to them. Denial of a generally available benefit to a person or group just because of their religion (or lack thereof) is a negative action. And in the case of Trinity the deciding factor was their religious nature. If you cannot see that then take another example of a generally available benefit. The State of Tennessee implemented a program, [Tennessee Promise](http://tnpromise.gov/about.shtml), where new high school graduates get two free years of college tuition to an in state community college or technical college. There are qualifying requirements to receive the benefit such as making satisfactory academic progress and completing 8 hours of community service. Suppose the state added one more requirement, that you are ineligible if you are Jewish. Joe and Jim both apply for the Tennessee Promise scholarship and each present substantially identical qualifications excepting that Joe says he is a Christian and Jim says he is Jewish. Joe’s application is approved. Jim’s is denied. Would Jim have a case to challenge the religious affiliation requirement as unconstitutional? Of course he would. Negative action is being taken against his application for a generally available benefit on the basis of his religious affiliation. Trinity applied for a generally available benefit. Their application was ranked #5 of all submitted applications. The state had funding for 14 grants. Trinity’s application was denied because of their religious affiliation. They have a case. And from the oral arguments at the Supreme Court it seems they have a pretty damn good case. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 24, 2017, 5:37pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/190 "2017-04-24T17:37:47Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … > Moreover, Trinity has taken the position throughout this litigation that its challenge to the provision is as applied, not facial. So firefighting services aren’t relevant. > … Firefighting was an issue raised by the Justices at oral argument. Breyer asked a question about it and Kagan came back to it later. At times SCOTUS tries to explore the limits of a particular line of reasoning to see if there is a logical limit by which a rule could be fashioned.The language in the Missouri constitution is quite broad. SCOTUS might have the votes to categorically rule the entire portion of the Missouri constitution as being a violation of the US constitution but a narrower ruling seems more likely. And that very discussion may provide the basis of a part of a test, of sorts. The state’s counsel arguing to uphold the denial of Trinity’s application suggested that police and fire protection can be provided to churches because no money is actually transferred directly to the church in those instances. So, despite the language in the state constitution barring spending of public funds for the benefit of a religious institution, perhaps the solution is to have the state directly pay for the tires rather than running the money through the church’s accounts. ---
**Author:** ![CandidGamera](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/candidgamera/32/2878_2.png) [@CandidGamera](https://boards.straightdope.com/u/CandidGamera)\ **Post date:** [April 25, 2017, 1:12pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/191 "2017-04-25T13:12:20Z")
> [@Iggy](#): > > Denial of a generally available benefit to a person or group just because of their religion (or lack thereof) is a negative action. And in the case of Trinity the deciding factor was their religious nature. > > If you cannot see that then take another example of a generally available benefit. The State of Tennessee implemented a program, [Tennessee Promise](http://tnpromise.gov/about.shtml), where new high school graduates get two free years of college tuition to an in state community college or technical college. There are qualifying requirements to receive the benefit such as making satisfactory academic progress and completing 8 hours of community service. > > Suppose the state added one more requirement, that you are ineligible if you are Jewish. Joe and Jim both apply for the Tennessee Promise scholarship and each present substantially identical qualifications excepting that Joe says he is a Christian and Jim says he is Jewish. Joe’s application is approved. Jim’s is denied. > > Would Jim have a case to challenge the religious affiliation requirement as unconstitutional? Of course he would. Negative action is being taken against his application for a generally available benefit on the basis of his religious affiliation. > > Trinity applied for a generally available benefit. Their application was ranked #5 of all submitted applications. The state had funding for 14 grants. Trinity’s application was denied because of their religious affiliation. They have a case. And from the oral arguments at the Supreme Court it seems they have a pretty damn good case. Giving money to a person who happens to be religious does not promote a religion, and we are constitutionally prohibited from treating individuals differently on the basis of religion. We’re also constitutionally prohibited from treating religious organizations differently from on another, but that doesn’t mean we can’t treat them differently than secular organizations, as we have two hundred and forty years of jurisprudence doing just that. If churches want to benefit from public programs? They can start paying their fucking taxes. I cannot even conceive of an argument that they should receive this grant that cannot be turned around to eliminate their tax-exempt status. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [April 25, 2017, 1:37pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/192 "2017-04-25T13:37:42Z")
> [@CandidGamera](#): > > If churches want to benefit from public programs? They can start paying their fucking taxes. I cannot even conceive of an argument that they should receive this grant that cannot be turned around to eliminate their tax-exempt status. Do you feel similarly about all 501c3s? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 25, 2017, 1:41pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/193 "2017-04-25T13:41:32Z")
> [@CandidGamera](#): > > If churches want to benefit from public programs? They can start paying their fucking taxes. I cannot even conceive of an argument that they should receive this grant that cannot be turned around to eliminate their tax-exempt status. Why do you apply that rule to churches and not to other non-profit 501(c) organizations? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 25, 2017, 1:47pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/194 "2017-04-25T13:47:17Z")
> [@Whack-a-Mole](#): > > So no, a $1 from the Feds is not fungible to PP when it comes to abortion services. It is not like my example for the church at all. It is not like PP takes a dollar from the Feds then very carefully follow that particular dollar around to make sure it does not go to abortion services while taking money not from the fed that they saved and send it to abortion services. Wait, what? Did you mean to say that? PP isn’t taking money from things like actual abortion fees and donations an use them on abortions? > [@](#): > > For the church to be equivalent it would need a completely separate set of books for their secular playground and be scrupulously careful that the monies between the religious and secular parts never mingle and have completely separate revenue streams. Keeping a separate set of books does nothing to mitigate the fungibility of money. A dollar in the Abortion account is indistinguishable from a dollar in the No Abortion account. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 25, 2017, 1:59pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/195 "2017-04-25T13:59:31Z")
> [@CandidGamera](#): > > Giving money to a person who happens to be religious does not promote a religion, and we are constitutionally prohibited from treating individuals differently on the basis of religion. We’re also constitutionally prohibited from treating religious organizations differently from on another, but that doesn’t mean we can’t treat them differently than secular organizations, as we have two hundred and forty years of jurisprudence doing just that. > > If churches want to benefit from public programs? They can start paying their fucking taxes. I cannot even conceive of an argument that they should receive this grant that cannot be turned around to eliminate their tax-exempt status. That may be how you feel and what you wish were the case but that is clearly not the path the Justices were discussing during oral arguments. The constitution does not mandate that the state create a program such as this if one does not exist. And the state could create a program that only addresses the needs of public schools. But once the state decided to open the program up to non-profits then they cannot use religion as a criteria when making a decision as to which organizations will receive the grant funds. Kagan noted it is a strong constitutional princliple to not treat a religious organization different than a secular one. Kagan. Obama’s appointee. This was the exchange she had with Layton (the attorney representing the state) during questioning. > [@from transcript Trinity case](#): > > …JUSTICE KAGAN: So, Mr. Layton, let’s say I – I accept that the State might have an interest in saying we just don’t want to be seen as giving money to one church and not another in these selective programs. > MR. LAYTON: And that’s the endorsement side. There’s also entanglement. > JUSTICE KENNEDY: Yes. I – > JUSTICE KAGAN: I – I think that that’s legitimate. > But here’s the thing. There’s a constitutional principle. It’s as strong as any constitutional principle that there is, that when we have a program of funding – and here we’re funding playground surfaces – that everybody is entitled to that funding, to – to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things. And I would have thought that that’s a pretty strong principle in our constitutional law. And how is that the State says that that’s not violated here? Sotomayor, who did not seem disposed to the argument made by Cortman (the attorney representing Trinity), made it clear that she does not think that churches holding a tax exempt status goes too far. > [@from transcript Trinity case](#): > > … > JUSTICE SOTOMAYOR: Well, there’s plenty of people who would think tax exemption goes too far. > MR. CORTMAN: Right. > JUSTICE SOTOMAYOR: But I don’t. I’m just saying there are people who make that claim. > MR. CORTMAN: Sure. And the Court’s already ruled on that. > … ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 25, 2017, 2:12pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/196 "2017-04-25T14:12:04Z")
> [@DSYoungEsq](#): > > Yes, the 8th Circuit seemed to signal quite strongly that they would have loved to ignore _Luetkemeyer_ and get to the heart of the question. Fortunately, the Supreme Court isn’t so constrained where _stare decisis_ is concerned. 😛 Lukenmeyer does not seem like a particularly controlling precedent. I didn’t read the appellate decision. Did it rely heavily on Lukenmeyer or feel compelled by Lyukenmeyer? ISTM that Lukenmeyer would have been decided exactly the same way if the private school was NOT a religious school. AFAICT Missouri did not fund school busses to secular private schools and therefore was not discriminating based on religious affiliation but rather on the fact that they were not public schools. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 25, 2017, 2:16pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/197 "2017-04-25T14:16:57Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Sorry, that should have said 15% to 37%. But you ignored the rest of my post. What else was there to your post? I agree that the actual percentage according to the article would be between 10% and 28% if applied to total revenues. Its still an issue if dollars are fungible. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 25, 2017, 2:19pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/198 "2017-04-25T14:19:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Since the state’s position was upheld by the Eight Circuit and a SCOTUS decision in favor of the church would be a clear break with existing precedent, I don’t see how you could say it would not be a “close call” unless the state wins. How would it be a clear break from existing precedent? Do you think Lukenmeyer is controlling? I think its inapposite. does anyone have a non-pdf version of the 8th circuit decision in this case? ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [April 25, 2017, 3:07pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/199 "2017-04-25T15:07:44Z")
This is a hoot: > [@Damuri\_Ajashi](#): > > Keeping a separate set of books does nothing to mitigate the fungibility of money. A dollar in the Abortion account is indistinguishable from a dollar in the No Abortion account. They say that learning by doing is best. I recommend \*\*Damuri Ajashi \*\*put theory to practice and let us know how that works out. I hear the prison canteen sells postage stamps. Mischarging research to the wrong federal grant is a good gateway drug. But know that you’re allowed to bring an attorney with you to your interview with the investigators (Yale was kind enough to remind us of this). In case this isn’t a Poe’s law woosh, my accounting team has been stressed lately, so I’m going share this with them. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 25, 2017, 4:16pm UTC](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994/200 "2017-04-25T16:16:33Z")
> [@Iggy](#): > > That may be how you feel and what you wish were the case but that is clearly not the path the Justices were discussing during oral arguments. > > The constitution does not mandate that the state create a program such as this if one does not exist. And the state could create a program that only addresses the needs of public schools. But once the state decided to open the program up to non-profits then they cannot use religion as a criteria when making a decision as to which organizations will receive the grant funds. > > Kagan noted it is a strong constitutional princliple to not treat a religious organization different than a secular one. Kagan. Obama’s appointee. This was the exchange she had with Layton (the attorney representing the state) during questioning. > Sotomayor, who did not seem disposed to the argument made by Cortman (the attorney representing Trinity), made it clear that she does not think that churches holding a tax exempt status goes too far. So far I have not been bowled over by Sotomayor’s participation on the Supreme Court. The oral arguments of this particular case did not impress me. [Previous page](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994.md?page=9) [Next page](https://boards.straightdope.com/t/trinity-lutheran-church-of-columbia-inc-v-comer/783994.md?page=11)