throbber

`(Slip Opinion)
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`
`
` OCTOBER TERM, 2016
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`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`
`
`COMER, DIRECTOR, MISSOURI DEPARTMENT OF
`
`NATURAL RESOURCES
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE EIGHTH CIRCUIT
` No. 15–577. Argued April 19, 2017—Decided June 26, 2017
`
`The Trinity Lutheran Church Child Learning Center is a Missouri pre-
`school and daycare center. Originally established as a nonprofit or-
`ganization, the Center later merged with Trinity Lutheran Church
`
`and now operates under its auspices on church property. Among the
`
`facilities at the Center is a playground, which has a coarse pea gravel
`
`surface beneath much of the play equipment. 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 Pro-
`gram. The program, run by the State’s Department of Natural Re-
`sources, offers reimbursement grants to qualifying nonprofit organi-
`
`
`zations that install playground surfaces made from recycled tires.
`
`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. Pursuant to that policy, the Department denied the Center’s
`application. In a letter rejecting that application, the Department
`
`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. Although the Center ranked fifth out of the 44 appli-
`
`
`
`cants, it did not receive a grant because it is a church.
`
`Trinity Lutheran sued in Federal District Court, alleging that the
`
`Department’s failure to approve its application violated the Free Ex-
`
`ercise Clause of the First Amendment. The District Court dismissed
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`the suit. The Free Exercise Clause, the court stated, prohibits the
`government from outlawing or restricting the exercise of a religious
`
`practice, but it generally does not prohibit withholding an affirmative
`
`
`
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`

`

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`2
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`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`
`Syllabus
`
`benefit on account of religion. The District Court likened the case be-
`
`fore it to Locke v. Davey, 540 U. S. 712, where this Court upheld
`against a free exercise challenge a State’s decision not to fund de-
`grees in devotional theology as part of a scholarship program. The
`
`District Court held that the Free Exercise Clause did not require the
`State to make funds available under the Scrap Tire Program to Trini-
`ty Lutheran. A divided panel of the Eighth Circuit affirmed. The
`
`fact that the State could award a scrap tire grant to Trinity Lutheran
`without running afoul of the Establishment Clause of the Federal
`Constitution, the court ruled, did not mean that the Free Exercise
`Clause compelled the State to disregard the broader antiestablish-
`ment principle reflected in its own Constitution.
`Held: The Department’s policy violated the rights of Trinity Lutheran
`
`under the Free Exercise Clause of the First Amendment by denying
`the Church an otherwise available public benefit on account of its re-
`
`ligious status. Pp. 6–15.
`
`(a) 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. Thus, in McDaniel v. Paty,
`435 U. S. 618, the Court struck down a Tennessee statute disqualify-
`
`
`ing ministers from serving as delegates to the State’s constitutional
`convention. A plurality recognized that such a law discriminated
`
`against McDaniel by denying him a benefit solely because of his “sta-
`
`tus as a ‘minister.’ ” Id., at 627. In recent years, when rejecting free
`
`exercise challenges to neutral laws of general applicability, the Court
`has been careful to distinguish such laws from those that single out
`the religious for disfavored treatment. See, e.g., Lyng v. Northwest
`
`Indian Cemetery Protective Assn., 485 U. S. 439; Employment Div.,
`
`Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872; and
`
`Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. It has
`remained a fundamental principle of this Court’s free exercise juris-
`
`prudence that laws imposing “special disabilities on the basis of . . .
`
`
`religious status” trigger the strictest scrutiny. Id., at 533. Pp. 6–9.
`
`(b) The Department’s policy expressly discriminates against other-
`wise eligible recipients by disqualifying them from a public benefit
`solely because of their religious character. Like the disqualification
`statute in McDaniel, the Department’s policy puts Trinity Lutheran
`to a choice: It may participate in an otherwise available benefit pro-
`
`
`gram or remain a religious institution. When the State conditions a
`
`
`
`benefit in this way, McDaniel says plainly that the State has imposed
`a penalty on the free exercise of religion that must withstand the
`
`most exacting scrutiny. 435 U. S., at 626, 628.
`
`The Department contends that simply declining to allocate to Trin-
`
`ity Lutheran a subsidy the State had no obligation to provide does
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`

`

`3
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`Cite as: 582 U. S. ____ (2017)
`
`
`Syllabus
`not meaningfully burden the Church’s free exercise rights. Absent
`
`any such burden, the argument continues, the Department is free to
`follow the State’s antiestablishment objection to providing funds di-
`rectly to a church. But, as even the Department 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. Trinity Lutheran is not claiming any entitlement
`
`to a subsidy. It is asserting a right to participate in a government
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`benefit program without having to disavow its religious character.
`
`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
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`grant. Pp. 9–11.
`
`(c) The Department tries to sidestep this Court’s precedents by ar-
`
`guing that this case is instead controlled by 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 educa-
`tion. Scholarship recipients were free to use state funds at accredited
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`religious and non-religious schools alike, but they could not use the
`funds to pursue a devotional theology degree. At the outset, the
`Court made clear that Locke was not like the cases in which the
`
`Court struck down laws requiring individuals to “choose between
`their religious beliefs and receiving a government benefit.” 540 U. S.,
`
`
`
`at 720–721. Davey was not denied a scholarship because of who he
`was; he was denied a scholarship because of what he proposed to do.
`
`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 restriction on the
`use of its funds was in keeping with the State’s antiestablishment in-
`
`terest in not using taxpayer funds to pay for the training of clergy, an
`“essentially religious endeavor,” id., at 721. Here, nothing of the sort
`can be said about a program to use recycled tires to resurface play-
`grounds. At any rate, the Court took account of Washington’s anties-
`tablishment interest only after determining that the scholarship pro-
`gram did not “require students to choose between their religious
`
`
`beliefs and receiving a government benefit.” Id., at 720–721. There
`is no dispute that Trinity Lutheran is put to the choice between being
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`a church and receiving a government benefit. Pp. 11–14.
`
`(d) The Department’s discriminatory policy does not survive the
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`“most rigorous” scrutiny that this Court applies to laws imposing
`special disabilities on account of religious status. Lukumi, 508 U. S.,
`
`at 546. That standard demands a state interest “of the highest order”
`
`
`to justify the policy at issue. McDaniel, 435 U. S., at 628 (internal
`
`quotation marks omitted). Yet the Department offers nothing more
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`

`

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`
`4
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`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`
`Syllabus
`
`than Missouri’s preference for skating as far as possible from reli-
`gious establishment concerns. In the face of the clear infringement
`on free exercise before the Court, that interest cannot qualify as com-
`pelling. Pp. 14–15.
`788 F. 3d 779, reversed and remanded.
`ROBERTS, C. J., delivered the opinion of the Court, except as to foot-
`note 3. KENNEDY, ALITO, and KAGAN, JJ., joined that opinion in full,
`and THOMAS and GORSUCH, JJ., joined except as to footnote 3. THOMAS,
`J., filed an opinion concurring in part, in which GORSUCH, J., joined.
`
`GORSUCH, J., filed an opinion concurring in part, in which THOMAS, J.,
`joined. BREYER, J., filed an opinion concurring in the judgment. SO-
`TOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
`
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`

`

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` Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 15–577
`_________________
`
` TRINITY LUTHERAN CHURCH OF COLUMBIA, INC.,
`
` PETITIONER v. CAROL S. COMER, DIRECTOR,
`
`
`
`MISSOURI DEPARTMENT OF NATURAL
`
`
`
`
`RESOURCES
`
`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
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`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
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`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
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`a preschool and daycare center open throughout the year
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`
`2
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`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`Opinion of the Court
`
`to serve working families in Boone County, Missouri, and
`the surrounding area. Established as a nonprofit organi-
`
`zation 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
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`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
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`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 im-
`posed 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 competi-
`tive basis to those scoring highest based on several crite-
`ria, 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 appli-
`cant owned or controlled by a church, sect, or other reli-
`gious entity. That policy, in the Department’s view, was
`compelled by Article I, Section 7 of the Missouri Constitu-
`tion, which provides:
`“That no money shall ever be taken from the public
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`

`

`3
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` Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
`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 dis-
`crimination 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.
`
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`

`

`
`
`4
`
`
`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`Opinion of the Court
`
`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 re-
`
`stricting the exercise of a religious practice; it generally
`does not prohibit withholding an affirmative benefit on
`account of religion. The District Court likened the De-
`
`partment’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 scholar-
`ship program. Finding the present case “nearly indistin-
`
`guishable 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 Mis-
`
`souri 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
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`

`

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`
`5
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`
`Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
`antiestablishment principle reflected in its own Constitu-
`tion. 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 (quot-
`
`ing 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
`——————
`1In 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 exclud-
`ing 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 noth-
`ing to remedy the source of the [Department’s] original policy—the
`
`Missouri Supreme Court’s interpretation of Article 1, §7 of the Missouri
`Constitution”).
`
`
`
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`

`

`
`
`6
`
`
`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`Opinion of the Court
`
`
` 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 (inter-
`nal 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 disabili-
`ties” 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 deny-
`ing a generally available benefit solely on account of reli-
`gious 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 reli-
`gion. Consequently, it cannot exclude individual Catho-
`
`
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`

`

`7
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` Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
`lics, Lutherans, Mohammedans, Baptists, Jews, Method-
`ists, Non-believers, Presbyterians, or the members of any
`other faith, because of their faith, or lack of it, from receiv-
`ing 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 Ten-
`nessee had disqualified ministers from serving as legisla-
`
`tors 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 discrimi-
`nated 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 Bren-
`nan 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 exer-
`
`cise 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
`
`
`
`
`
`

`

`
`
`8
`
`
`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`Opinion of the Court
`
`from timber harvesting or road construction on a particu-
`
`lar 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 Govern-
`ment 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 Re-
`sources of Oregon v. Smith, 494 U. S. 872 (1990), we re-
`jected 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 govern-
`
`ment’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
`
`——————
` 2This 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
`
`
`
`
`
`
`
`

`

`
`
`9
`
`
`Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
` 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. Mem-
`bers 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) (not-
`ing “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
`
`——————
`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.
`
`
`
`
`

`

`
`
`
`
`
` 10
`
`
`TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v.
`COMER
`Opinion of the Court
`
`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 De-
`
`partment’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 ex-
`clusion 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 recip-
`ient’s] willingness to . . . surrender[] his religiously im-
`pelled [status] effectively penalizes the free exercise of his
`constitutional liberties.” 435 U. S., at 626 (plurality opin-
`ion) (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 other-
`
`wise 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 San-
`teria. Here the Department has simply declined to allo-
`cate to Trinity Lutheran a subsidy the State had no obli-
`gation 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.
`
`
`
`
`
`

`

`
`
`
`
` 11
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
`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 privi-
` lege.” 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 dis-
`courage[s] the exercise of First Amendment rights.” Sher-
`
`bert, 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
`
`
`

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