Trinity Lutheran Church of Columbia, Inc. v. Pauley

• Decision Date: 29 May 2015
• Docket Number: No. 14–1382.,14–1382.
• Citation: 788 F.3d 779
• Parties: TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., Plaintiff–Appellant v. Sara Parker PAULEY, in her official capacity, Defendant–Appellee The Becket Fund for Religious Liberty, Amicus on Behalf of Appellant(s) American Civil Liberties Union Foundation, et al., Amici on Behalf of Appellee(s).
• Court: U.S. Court of Appeals — Eighth Circuit

788 F.3d 779

TRINITY LUTHERAN CHURCH OF COLUMBIA, INC., Plaintiff–Appellant

v.Sara Parker PAULEY, in her official capacity, Defendant–Appellee

The Becket Fund for Religious Liberty, Amicus on Behalf of Appellant(s)

American Civil Liberties Union Foundation, et al., Amici on Behalf of Appellee(s).

No. 14–1382.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 15, 2015.

Filed: May 29, 2015.

Rehearing and Rehearing En Banc Denied Aug. 11, 2015.^*

Joel L. Oster, Alliance Defending Freedom, Leawood, KS, argued (Erik W. Stanley, Kevin H. Theriot, Alliance Defending Freedom, Leawood, KS, Michael K. Whitehead, The Whitehead Law Firm, LLC, Kansas City, MO, on the brief), for appellant.

James R. Layton, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., Kristin R. Stokely, Asst. Atty. Gen., on the brief), for appellee.

Eric S. Baxter, Asma T. Uddin, Diane M. Verm, The Becket Fund for Religious Liberty, Washington, DC, for amicus curiae The Becket Fund for Religious Liberty, in support of appellant.

Anthony E. Rothert, Grant R. Doty, Gillian R. Wilcox, ACLU of Missouri Foundation, St. Louis, MO, Daniel Mach, Heather L. Weaver, ACLU Foundation, Washington, DC, Ayesha N. Khan, Alex J. Luchenister, Americans United for Separation of Church and State, Washington, DC, for amici curiae the ACLU Foundation, the ACLU of Missouri, and Americans United for Separation of Church and State, in support of appellee.

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

Trinity Lutheran Church of Columbia, Inc. (“Trinity Church”), filed this action alleging that Sara Pauley, acting in her official capacity as Director of the Missouri Department of Natural Resources (“DNR”), violated Trinity Church's rights under the United States and Missouri Constitutions by denying its application for a grant of solid waste management funds to resurface a playground on church property. The district court¹ dismissed the Complaint for failure to state a claim and denied Trinity Church's post-dismissal motion for leave to file an amended complaint. Trinity Church appeals both rulings. We affirm.

I. Background

Trinity Church operates on its church premises a licensed preschool and daycare called the Learning Center. Initially established as a non-profit corporation, the Learning Center merged into Trinity Church in 1985. The Learning Center has an open admissions policy. It is a ministry of Trinity Church that teaches a Christian world view and incorporates daily religious instruction in its programs.

DNR offers Playground Scrap Tire Surface Material Grants, a solid waste management program. The grants provide DNR funds to qualifying organizations for the purchase of recycled tires to resurface playgrounds, a beneficial reuse of this solid waste. See Mo.Rev.Stat. §§ 260.335.1, 260.273.6(2). In 2012, Trinity Church applied for a grant to replace the Learning Center's playground surface, disclosing that the Learning Center was part of Trinity Church. On May 21, 2012, the Solid Waste Management Program Director wrote the Learning Center's Director, advising:

[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, section or denomination of religion.”

A Solid Waste Management Program planner subsequently advised the Solid Waste Management District Director that Trinity Church's application ranked fifth out of forty four applications in 2012, and that fourteen projects were funded.

Trinity Church commenced this action, asserting federal question jurisdiction over claims that the denial of its Scrap Tire application violated (i) the Equal Protection Clause of the Fourteenth Amendment, (ii) its First Amendment right to free exercise of religion, (iii) the First Amendment's Establishment Clause, and (iv) its First Amendment right of free speech. The Complaint invoked the district court's supplemental jurisdiction over a fifth cause of action, alleging that DNR's denial violated Article I, Section 7, of the Missouri Constitution. Trinity Church sought injunctive and declaratory relief against DNR “policies and actions in denying grants to applicants who are churches or connected to churches.”

The district court granted Director Pauley's motion to dismiss the complaint for failure to state a claim. Trinity timely moved for reconsideration and for leave to amend its complaint to add a factual allegation that the DNR had previously given grants under the Scrap Tire Program to at least fifteen other religious organizations, including churches. The district court denied the motion to reconsider. It also denied leave to amend because Trinity Church “fail[ed] to provide any explanation for not amending its Complaint prior to the dismissal of this action.” The court further noted that the amendment was “futile” because, while Trinity Church argued the newly alleged fact “undermines Missouri's purported interest” in denying the application, Trinity Church “failed to identify any valid legal theory under which Missouri would need to show the existence of a compelling interest.”

Trinity Church appeals every aspect of the district court's rulings, except the dismissal of its First Amendment free speech claim. We review the dismissal of a complaint for failure to state a claim de novo. Dunbar v. Wells Fargo Bank, N.A., 709 F.3d 1254, 1256 (8th Cir.2013). We review the denial of leave to amend for abuse of discretion, but we review de novo legal conclusions underlying a determination of futility. In re Medtronic, Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1208 (8th Cir.2010).

II. The Federal Constitutional Claims

“Missouri has a long history of maintaining a very high wall between church and state.” Luetkemeyer v. Kaufmann, 364 F.Supp. 376, 383–84 (W.D.Mo.1973), aff'd, 419 U.S. 888, 95 S.Ct. 167, 42 L.Ed.2d 134 (1974). Two provisions in the Missouri Constitution “declaring that there shall be a separation of church and state are not only more explicit but more restrictive than the Establishment Clause of the United States Constitution.” Paster v. Tussey, 512 S.W.2d 97, 101–02 (Mo. banc 1974), cert. denied, 419 U.S. 1111, 95 S.Ct. 785, 42 L.Ed.2d 807 (1975). Those provisions, one of which is at the core of this dispute, were initially adopted in 1870 and 1875. As re-adopted in the Missouri Constitution of 1945, they now provide:

Art. I, § 7. That 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, as such; 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.

Art. IX, § 8. Neither the general assembly, nor any county, city, town [etc.] shall ever make an 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 ... or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation ... ever be made by the state ... for any religious creed, church, or sectarian purpose whatever.²

Trinity Church's Complaint alleged that, by denying its grant application solely because it is a church, DNR (i) violated the Free Exercise clause because it “target[ed] religion for disparate treatment” without a compelling government interest; (ii) violated the Establishment Clause because the denial “was hostile to religion” and required DNR “to determine what is religious enough” to justify denial; and (iii) violated the Equal Protection Clause by discriminating against religious learning centers and day care organizations without a compelling government interest. Although Trinity Church couched these claims as an attack on DNR's “customs, policies and practices,” all its claims are plainly facial attacks on Article I, § 7, of the Missouri Constitution, which provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church,” and which was cited by DNR as the sole basis for its denial.

Viewed in this light, it is apparent that Trinity Church seeks an unprecedented ruling—that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church. To prevail, Trinity Church must clear a formidable if not insurmountable hurdle, what appears to be controlling adverse precedent. In Luetkemeyer, a three-judge district court was convened in the Western District of Missouri to consider a claim that the First Amendment and the Equal Protection clause required Missouri to provide the same public transportation benefits for the pupils of church-related schools as were being provided to transport children to public schools. 364 F.Supp. at 377. In denying plaintiffs injunctive and damage relief, the majority explained:

We conclude without hesitation that the long established constitutional policy of the State of Missouri, which insists upon a degree of separation of church and state to probably a higher degree than that required by the First Amendment, is indeed a ‘compelling state interest in the regulation of a subject within the State's constitutional power’ ... That interest, in our judgment, satisfies any possible infringement of the Free Exercise clause of the First Amendment or of any other prohibition in the Constitution of the United States.

* * * * * *

The fact that Missouri has determined to enforce a more strict policy of church and state separation than that

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