ORDER
Defendant Sara Parker Pauley, in her official capacity as Director of the Missouri Department of Natural Resources Solid Waste Management Program (“Department”), moves to dismiss the Complaint of Plaintiff Trinity Lutheran Church of Columbia, Inc. (“Trinity”). [Doc. # 9]. For the reasons set forth below, Pauley’s motion to dismiss is GRANTED and this case is DISMISSED, with prejudice.
I. Background
Trinity is a church that operates a preschool and daycare called the Learning Center. The Learning Center is a ministry of the church and incorporates daily religious instruction. Through the Learning Center, Trinity teaches a Christian world view to the children enrolled in these programs, including the Gospel. The Learning Center’s policy is to admit students of any sex, race, color, religion, nationality, and ethnicity.
The Department of Natural Resources Solid Waste Management Program runs the Scrap Tire Program, which competitively awards grants to qualifying organizations for the purchase of recycled tires to resurface playgrounds. Due to the limited funds available for this program, the Department grades and ranks the applications it receives and only gives grants to those organizations that best serve the program’s purposes. Both public and private nonprofit day care centers and other nonprofit entities are eligible to submit grant applications. However, the Department has a policy that prohibits organizations from participating if the applicant is owned or controlled by a church, sect or denomination of religion. It contends that this policy is consistent with Article 1, Section 7, of the Missouri Constitution which prohibits public money being used to aid religion.
Seeking to improve the safety of the surface area of its playground, Trinity, through the Learning Center, applied for a grant under the 2012 Scrap Tire Program. Trinity’s grant application was graded and ranked fifth out of forty-four applications. Although a total of fourteen grants were awarded in 2012, Trinity’s grant application was denied because of the Department’s policy to not give grants to religious organizations.
Trinity now sues Pauley, who is named solely in her official capacity as the Director of the Missouri Department of Natural Resources Solid Waste Management Program. Trinity’s Complaint claims that the denial of its grant application violated Article I, Section 7 of the Missouri Constitution, the Equal Protection Clause of the Fourteenth Amendment and the Free Exercise, Establishment and Free Speech Clauses of the First Amendment.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Pauley moves to dismiss Trinity’s Complaint for failure to state a claim. When considering a motion to dismiss, the Court must accept as true the factual allegations contained in the complaint, and draw all reasonable inferences in favor of the plaintiff. See Gomez v. Wells Fargo Bank, N.A.,
A. Missouri Constitution Article I, Section 7
Trinity claims that when the Department refused to allow it to participate in the Scrap Tire Program, the Department impermissibly discriminated against Trinity in violation of Article I, Section 7 of the Missouri Constitution. Section 7 provides “[t]hat no money shall ever be taken from the public 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 ...; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” Mo. Const, art. I, § 7.
Trinity relies on the second clause of Section 7 for the proposition that the Department cannot deny Trinity funding merely because it is a church as this would be discrimination toward a religious organization. Pauley counters that both parts of Section 7, the prohibition on state aid to a church and the prohibition on discrimination against a church, must be read in harmony. Since state aid to a church is prohibited in the first clause, Pauley contends that the State’s refusal to give aid to religious organizations could not constitute discrimination contemplated by the second clause. Instead, the second clause prohibits preference for or discrimination between religious sects or denominations.
It is a basic rule of statutory construction that each section of a statute must be interpreted in harmony with all sections of the statute. Frye v. Levy, No. SD 32307, — S.W.3d -, -,
Trinity contends that the Scrap Tire Program grants are not public funds expended in direct or indirect aid to a church and, therefore, giving it a grant would not violate the anti-aid provision of Section 7. At oral argument, Trinity put forth a “quid pro quo” theory of aid based on the premise that both parties to a contract have mutual obligations. Trinity argues that while the State provides funds for the purchase of the scrap tires and delivery, Trinity is contractually bound to promote the Scrap Tire Program and educate the public about the benefits of recycling. Indeed, Trinity argues that acceptance of the funding will actually result in
In developing this quid pro quo theory Trinity relies upon its reading of the Missouri Supreme Court case Americans United v. Rogers,
At oral argument, Trinity maintained that this passage represented the Missouri Supreme Court’s holding that quid pro quo exchanges of public funding in return for obligations to utilize such funding in a prescribed manner cannot be considered “aid” under Section 7. However, Trinity grossly misrepresents the Missouri Supreme Court’s analysis and holding in that case. The Missouri Supreme Court merely quoted an argument presented by supporters of the tuition grant program and did not approve or in any way advance that argument. Instead, it found that the statute in question did not violate Section 7 because the students directly received the tuition grants from the state and could only attend schools with independent boards not under the control of a religious creed or church. Id. at 720-21. In the interests of judicial deference to the legislative process, the Missouri Supreme Court found that the tuition grant program “embodied] the will of the people.” Id. at 721. This Court has not found nor has Trinity cited any Missouri case that defines Section 7 “aid” according to Trinity’s quid pro quo theory, and the Court is unpersuaded that such a definition would make any sense given the complex factual disputes and nuanced judgments that such a definition would precipitate.
Furthermore, there is a long tradition of Missouri state courts recognizing a “high wall of separation between church and state” based on the state constitution. A.B. v. Liberty United Methodist Church, No. WD 59922,
In light of the higher wall of separation between church and state present in the Missouri Constitution, the Missouri Supreme Court has, on multiple occasions, strictly interpreted Section 7 to prohibit public funding of religious institutions. The Missouri Supreme Court’s reasoning has persisted since its early inception in Harfst v. Hoegen,
The Missouri Supreme Court has followed this line of reasoning to find various categories of public aid to religious institutions impermissible that may have otherwise been allowed under the Federal Constitution. For example, it deemed the use of public funds to transport students to parochial schools to be unconstitutional in McVey v. Hawkins,
Trinity argues, however, that the Missouri Supreme Court’s long-held “high wall” has begun to crumble in recent years. Trinity primarily relies upon the Missouri Supreme Court’s decision in St. Louis University v. Masonic Temple Association of St. Louis,
The Missouri Supreme Court’s holding in St. Louis University reflects a consistent recognition of the unique circumstances involved in the State’s relationship with private institutions of higher education, many of which have historical ties with a particular denomination of religion. Thirty years earlier in Americans United, the Missouri Supreme Court upheld a tuition grant aid program to students who attended public or private colleges and universities after finding that the institutions needed to have independent boards and policies of academic freedom.
The Missouri Supreme Court’s decisions in Americans United and St. Louis University are not examples of public aid to religious institutions with the “blessing of the state,” as characterized by Trinity’s counsel. Rather, these cases can be distinguished from Missouri jurisprudence regarding the high wall of separation between church and state in two distinct ways. First, the Missouri Supreme Court in both cases makes clear that the religious institutions receiving aid, indirectly through the students in Americans United and through the developer in St. Louis
Thus, the allegations in Trinity’s complaint show that public funding through the Scrap Tire Program would be impermissible under Section 7. First, the Learning Center, which merged with Trinity in 1985, today remains part of and run by the Church. Trinity alleges that the Learning Center is a “ministry” of the Church that directly instructs students in the Church’s religious beliefs. Particularly, Trinity notes the “[t]he Church has a sincere religious belief to be associated with the Learning Center and to use it to teach the Gospel to children of its members, as well to bring the Gospel messages to non-members.” [Doc. # 1 at 4]. Unlike the colleges and universities in St. Louis University or Americans United, the Church controls the Learning Center. It utilizes religious curriculum in daily activities in its preschool and daycare by “teaching a Christian world view.” Id. Its students are children, not mature adults instructed by faculty with diverse religious backgrounds. By all indications, Trinity has pled that its Learning Center is a part of the Church and is used to inculcate its religious beliefs to children in the pre-school and daycare. Missouri courts have consistently held that public aid to such an organization is prohibited under the State constitution.
In conclusion, Section 7 clearly prohibits public money from, directly or indirectly, going to aid a church, sect, or denomination of religion. Trinity’s own pleadings demonstrate that funds from Pauley’s department in the form of the Scrap Tire Program would aid the Church and its ministry Learning Center within the meaning of Missouri law. As the Missouri Constitution prohibits such aid, the Department’s refusal to grant it cannot be considered discrimination under Section 7. To hold otherwise would permit the second half of the section to obviate the first, in that complying with the prohibition of aid to a church would violate the prohibition on discrimination against a church. Thus, Trinity’s claims based on the Missouri Constitution must fail.
B. Free Exercise
Pauley also argues that Trinity’s Complaint fails to state a claim for a violation of the Free Exercise Clause of the First Amendment because Trinity and its members were not prevented from exercising any religious practice, merely because they could not get funding from the State.
The Free Exercise Clause provides that “Congress shall make no law ... prohibiting the free exercise [of religion].” U.S. Const. Amend. I. With respect to this clause, the Supreme Court has explained, “[t]he crucial word in the constitutional text is ‘prohibit.’ For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Lyng v. Nw. Indian Cemetery Protective Ass’n,
In response, Trinity argues that the Free Exercise Clause is implicated in this case because the decision to deny Trinity’s grant application targeted Trinity for disparate treatment on the basis of religion. In support, Trinity cites a string of cases, beginning with Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
In each of the cases cited by Trinity to support its Free Exercise claim, the ordinance or regulation at issue directly prohibited or restricted the exercise of a religious practice. See, e.g., Lukumi,
As a result, the present case is decidedly more analogous to Locke v. Davey,
The Supreme Court reversed, holding that “such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.” Id. at 715,
In Lukumi, the city of Hialeah made it a crime to engage in certain kinds of animal slaughter. We found that the law sought to suppress ritualistic animal sacrifices of the Santería religion---- In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community.... And it does not require students to choose between their religious beliefs and receiving a government benefit.... The State has merely chosen not to fund a distinct category of instruction.
Id. at 720-21,
Trinity argues that Locke is distinguishable because the holding in Locke was explicitly limited to funding the religious training of clergy, and the Locke decision was based, at least in part, on a longstanding aversion to using tax dollars to fund the ministry and the concomitant finding that there are “few areas in which a State’s antiestablishment interests come more into play.” Id. at 722-23,
Furthermore, Trinity’s attempt to distinguish Locke on this basis is particularly unpersuasive here, because this case raises antiestablishment concerns that are at least comparable to those relied on by the Court in Locke. In particular, Trinity ultimately seeks the direct payment of government funds to a religious institution. Unlike in Locke, where “the link between government funds and religious training [was] broken by the independent and private choice of recipients” and so there was “no doubt” that the state could have provided scholarships to students pursuing devotional degrees without offending the Establishment Clause, id. at 719,
In Nyquist, for instance, the Supreme Court held that a New York statute that provided for direct money grants to sectarian schools to be used for the maintenance and repair of school facilities violated the Establishment Clause. Nyquist,
If tax-raised funds may not be granted to institutions of higher learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities 20 years hence, a fortiori they may not be distributed to elementary and secondary sectarian schools for the maintenance and repair of facilities without any limitations on their use. If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair.
Id. at 776-77,
The Learning Center is a ministry of the Church and incorporates daily religion and developmentally appropriate activities into a school and optional daycare program. [ ] Through the Learning Center, the Church teaches a Christian world view to children of members of the Church, as well as children of nonmember residents of Boone County and the surrounding area.... The Church has a sincere religious belief to be associated with the Learning Center and to use it to teach the Gospel to children of its members, as well to bring the Gospel message to non-members.
[Doc. # 1 at 4]. It is thus clear from the face of the Complaint that religious instruction is a central element of the preschool and daycare offered through the Learning Center, and there is nothing in the Complaint to suggest that this instruction does not extend to the playground.
Thus, using taxpayer-raised funds to refurbish Trinity’s playground, no matter how innocuous, raises Establishment Clause concerns even if such use of funds would not violate the Establishment Clause. See Nyquist,
That said, the question of whether awarding a scrap tire grant directly to Trinity would violate the Establishment Clause is not at issue in this case, and so it is neither necessary nor appropriate to resolve this question here. Nonetheless, the existence of a longstanding and legitimate antiestablishment interest makes this case nearly indistinguishable from Locke. As a result, even assuming that providing a tire scrap grant to Trinity would not violate the Establishment Clause, this Court cannot conclude that the exclusion of a religious preschool from this aid program is constitutionally suspect under the Free Exercise Clause in light of the longstanding and substantial concerns about direct payment of public funds to sectarian schools. Cf. Locke,
As in Locke, the exclusion from the tire scrap grant program places a relatively minor burden on Trinity. Cf. Locke,
Furthermore, it is not unreasonable that the state of Missouri, in determining how to apportion the limited funds available for this program, would choose to exclude a religious preschool and daycare based on antiestablishment concerns arising under both the First Amendment
Finally, while there is comparatively little authority directly addressing this issue, lower courts have consistently rejected Free Exercise claims in analogous circumstances. In Strout, for instance, the First Circuit upheld a statute that offered grants directly to private educational institutions, provided that they were “non-sectarian,” to subsidize the education of students residing in communities without public education facilities. Strout,
Similarly, in Luetkemeyer v. Kaufmann,
Clearly, the State need not. Even as to church-sponsored schools, whose policies are nondiscriminatory, any absolute right to equal aid was negated, at least by implication, in Lemon v. Kurtzman,403 U.S. 602 ,91 S.Ct. 2105 ,29 L.Ed.2d 745 (1971). The Religion Clauses of the First Amendment strictly confíne state aid to sectarian education. Even assuming, therefore, that the Equal Protection Clause might require state aid to be granted to private nonsectarian schools in some circumstances — health care or textbooks, for example — a State could rationally conclude as a matter of legislative policy that constitutional neutrality as to sectarian schools might best be achieved by withholding all state assistance.
Norwood,
Two years earlier, in Brusca v. Missouri ex rel. State Board of Education,
[A] parent’s right to choose a religious private school for his children may not be equated with a right to insist that the state is compelled to finance his child’s non-public school education in whole or in part in order that he may obtain a religious education.... [T]o the extent the Religion Clauses of the First Amendment do not prohibit such financial aid, they do not require that it be given by the State.... We find nothing arbitrary or unreasonable in the determination of the State to deny its funds to sectarian schools or for religious instruction.
Id. at 277, 279. In an analogous case, on appeal from the Central District of California’s decision entering judgment for the state of California, the Ninth Circuit “deferred decision ... awaiting the outcome of the appeal in Brusca.” Jackson v. California,
Other courts, often citing Brusca and Luetkemeyer, have consistently reached the same conclusion. For instance, in rejecting the claim that not providing tax credits for educational expenses to parents of students attending religious schools, the Southern District of Ohio reasoned:
While the state may grant secular, neutral, non-ideologieal aid to sectarian school students when such aid is granted in common to all students, ... no right*1154 to such aid under the Free Exercise Clause has been established in our constitutional matrix. The broad construction of the Free Exercise Clause urged upon us by the state would for all practical purposes, render meaningless the thrust and import of the Establishment Clause.... [The Free Exercise Clause] has never been interpreted as placing an affirmative duty upon the state to appropriate money so that religious beliefs might be more effectively exercised or the continuing vitality of religious institutions ensured.... The adoption of such a view would mark a profound and radical departure from the philosophy of separation of Church and State which has characterized this country from its very inception.
Kosydar v. Wolman,
To the extent that Trinity suggests that this case is analogous to Sherbert, wherein the Supreme Court held that a State may not apply the provisions governing eligibility for public welfare benefits “so as to constrain a worker to abandon her religious convictions respecting the day of rest,” Sherbert,
Sherbert involved a request for dispensation from a general regulatory law; not a request or demand for a public service. While the exemption or dispensation would clearly result in some aid to a particular individual, it did not involve the expenditure of state funds which would, in fact, indirectly aid a religious institution. The Court simply did not have the latter question before it. Justice Douglas appropriately pointed out in his concurring opinion, that ‘this case does not involve the problems of direct or indirect state assistance to a religious organization.’ ”
Luetkemeyer,
In conclusion, even assuming that providing a tire scrap grant to Trinity would not violate the Establishment Clause (an issue not before the Court), there is no basis for concluding that the decision to exclude religious institutions from this program did violate the Free Exercise Clause. Accordingly, Trinity’s Free Exercise claim is dismissed.
C. Equal Protection
Having concluded that the Complaint fails to allege a violation of the Free Exercise Clause, Trinity’s Equal Protection claim must also be dismissed. The Locke Court rejected the plaintiffs Equal Protection claim in a footnote, reasoning that “[b]eeause we hold, ... that the program is not a violation of the Free Exercise Clause, ... we apply rational-basis scrutiny to his equal protection claims.” Locke,
From the allegations in the Complaint, it is clear that the decision to exclude religious organizations from participation in the Tire Scrap Program withstands rational-basis review. According to Trinity, the letter that explained the decision to deny Trinity’s grant application stated:
[A]fter further review of applicable constitutional limitations, the department is unable to provide this financial assistance directly to the church as contemplated by the grant application. Please note that Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.’
[Doc. # 1 at 6]. Thus, as in Locke, Trinity’s exclusion from the aid program in this case was based on the Missouri Constitution’s heightened separation of church and state. Cf. id. at 716,
D. Establishment
Trinity’s Establishment Clause claim is premised on the theory that the decision not to award Trinity a grant evinced hostility toward religion, in violation of the neutrality toward religion mandated by the Establishment Clause. None of the cases cited by Trinity, however, supports the proposition that the Establishment Clause entitles Trinity to relief in this case.
Furthermore, in the only case of which the Court is aware that has directly addressed this issue, the First Circuit considered and rejected the same theory advanced by Trinity. See Strout,
The Court of Appeals (and the dissent) are correct to extract from our decisions the principle that we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions, .... The error is not in identifying the principle, but in believing that it controls this case.... [T]he Court of Appeals decided a case that was, in essence, not before it, and the dissent would have us do the same. We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity .... [T]he undisputed fact [is] that no public funds flow directly to WAP’s coffers.
Rosenberger,
As the Strout court persuasively reasoned, “In lauding neutrality as the keystone of Establishment Clause jurisprudence, plaintiff-appellants forget that neutrality is but one ‘hallmark of the Establishment Clause.’ Rosenberger neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence.” Strout,
[W]e are at a loss to understand why plaintiff-appellants believe that the Establishment Clause gives them a basis for recovery. The Establishment Clause forbids the making of a law respecting the establishment of any religion. There is no relevant precedent for using its negative prohibition as a basis for extending the right of a religiously affiliated group to secure state subsidies.
Id. at 64. Likewise, in this case, Trinity has not cited, and the Court’s independent research has not revealed, a case construing the Establishment Clause in the manner urged by Trinity. Accordingly, there is no basis for concluding that Trinity is entitled to relief under the Establishment Clause and this claim must be dismissed.
E. Free Speech
Neither party ever substantively addressed Trinity’s claim that the denial of its grant application violated its right to free speech under the First Amendment. In rejecting the plaintiffs free speech claim in Locke, the Court reasoned:
[T]he Promise Scholarship Program is not a forum for speech. The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to encourage a diversity of views from private speakers---- Our cases dealing with speech forums are simply inapplicable.
Locke,
Trinity presents no argument or authority that suggests a different result is warranted where the government program in question is designed to encourage and assist the use of scrap tires to refurbish playgrounds. There is simply no basis for concluding that the Tire Scrap Program is designed to provide an open forum encouraging diverse views from private speakers. Accordingly, for the reasons set forth in Locke and Eulitt, the Complaint fails to state a claim for a violation of Trinity’s right to free speech under the First Amendment and this claim must be dismissed.
III. Conclusion
For the foregoing reasons, Defendant Pauley’s motion to dismiss, [Doc. # 9], is GRANTED and this case DISMISSED, with prejudice.
Notes
. The Court has often interpreted Article I, Section 7 alongside Article IX, Section 8, which provides that "[n]either the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make am appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; ____” Mo. Const, art. IX, § 8. Missouri courts often construe these two sections together to represent Missouri’s establishment clause. See, e.g., St. Louis Univ.,
. If anything, providing direct aid to a religious preschool is less likely to withstand an Establishment Clause challenge. In Tilton v. Richardson,
*1150 There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. The affirmative if not dominant policy of the instruction in pre-college church schools is to assure future adherents to a particular faith by having control of their total education at an early age.... There is substance to the contention that college students are less impressionable and less susceptible to religious indoctrination____Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students.... Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that government aid will in fact serve to support religious activities.
Id. at 685-86,
. Though heavily criticized by the plurality opinion in Mitchell v. Helms,
. While the Locke Court characterized the State of Washington’s interest in not funding the religious instruction of future clergy as "substantial,” Locke,