Emory Law Journal


In Trinity Lutheran Church of Columbia v. Comer, the Supreme Court determined that a state could not deny a church generally available benefits because of its religious character. Before Trinity Lutheran, the Supreme Court consistently recognized the existence of a ¿play in the joints¿ between the Establishment Clause and Free Exercise Clause, meaning some state government actions are neither prohibited by the Establishment Clause nor required by the Free Exercise Clause. Issues concerning tax exemptions and state funding are consistently held to fall within the ¿play in the joints,¿ which permits state and local governments to refuse to fund religious institutions, even if funding would be constitutionally permissible. This Comment argues that the Trinity Lutheran decision is problematic and Locke v. Davey is the proper interpretation of the relationship between the First Amendment religion clauses and state funds, as it recognizes the importance of federalism and leaves state tax issues sub-constitutional.