After Trinity Lutheran, can Virginia localities give grants or contributions to churches and church-affiliated charities, and can a locality be sued for refusing to?

Plain-English summary

Delegate Mullin asked two related questions after the U.S. Supreme Court's 2017 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer. First, may Virginia localities now contribute funds to churches or church-controlled charities, given the Court's ruling that Missouri violated the Free Exercise Clause when it disqualified a church-run preschool from a tire-recycling playground grant solely because it was a church? Second, would a Virginia locality that continues to follow Code § 15.2-953's exclusion of church-controlled charitable institutions face liability under the First and Fourteenth Amendments?

The Attorney General's answer threaded a careful needle. The Dillon Rule means a Virginia locality can only exercise the powers the General Assembly grants. Code § 15.2-953(A) gives localities the power to make appropriations to charitable institutions but expressly excludes those "controlled in whole or in part by any church or sectarian society." There are narrow statutory exceptions (housing for persons 60 and older, hospitals, nursing homes, fire and EMS organizations, historical commemoration, nondenominational YMCAs/YWCAs). The statute also expressly carves out service contracts for the care of indigent, sick, or injured persons, regardless of religious affiliation. Subsection F makes clear that nothing in the statute obligates a locality to make appropriations.

Trinity Lutheran held that excluding a qualifying religious entity from a generally available public benefit solely because of its religious identity violates the Free Exercise Clause. The AG concluded that Trinity Lutheran does not change the scope of Virginia local authority under § 15.2-953, but it does make the statute vulnerable to as-applied constitutional challenges in some scenarios. The strongest defense for the statute is that § 15.2-953 does not require localities to provide "generally available public benefits" at all; it authorizes discretionary appropriations and the statute itself says localities are not obligated to give anything to anyone. The AG also invoked the long-standing rule that Attorneys General do not declare a statute unconstitutional unless certain "beyond a reasonable doubt," and declined to do so here. The second question, about potential locality liability, was also fact-dependent and the AG declined to opine without specific facts.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Free Exercise doctrine in this area has continued to develop (see Espinoza v. Montana Dep't of Revenue (2020) and Carson v. Makin (2022) post-dating this opinion).

Background and statutory framework

Code § 15.2-953(A) is Virginia's main delegation of charitable-appropriation power to localities. It authorizes localities to make appropriations of public funds, personal property, or real estate as donations to charitable institutions, but excludes institutions "controlled in whole or in part by any church or sectarian society." Subsection A also carves out an exception for nondenominational YMCAs/YWCAs and for service contracts with sectarian institutions for the care of indigent, sick, or injured persons. Subsection B adds more exceptions: housing for persons 60+, hospitals and nursing homes, volunteer fire and EMS, historical commemoration, and other categories. Subsection F says the statute does not obligate any locality to appropriate funds to any entity. The Virginia Constitution itself, in Article IV, § 16, restricts the General Assembly from making such appropriations but expressly authorizes localities to do so for charitable institutions.

Trinity Lutheran involved a church-run preschool that applied for a competitive grant under Missouri's Scrap Tire Program to resurface its playground with recycled tires. The Missouri Department of Natural Resources had a policy of categorically disqualifying religious organizations from the program, citing a Missouri constitutional ban on state funding of any religious entity. The U.S. Supreme Court held the policy violated the Free Exercise Clause: denying a qualifying religious entity a public benefit solely because of its religious identity "is odious to our Constitution ... and cannot stand." The Court applied strict scrutiny and found that Missouri's stated interest in "skating as far as possible from religious establishment concerns" did not qualify as a compelling state interest.

The AG's analysis broke down the distinction Trinity Lutheran drew. Locke v. Davey (2004) had upheld a Washington scholarship program that funded students in religious schools generally but excluded those pursuing devotional theology degrees. The Court in Trinity Lutheran distinguished Locke on the ground that Washington had "merely chosen not to fund a distinct category of instruction" and the plaintiff in Locke was excluded "because of what he proposed to do," not because of "who he was." Trinity Lutheran was a church; the discrimination was based on identity, not activity. The AG suggested that § 15.2-953, which discriminates based on the church's status, looks more like the Missouri policy than the Washington program.

The AG flagged two reasons to think the statute survives facial challenge. First, § 15.2-953 does not require localities to make benefits available to anyone; it merely authorizes discretionary appropriations. The Trinity Lutheran ruling concerned a "generally available public benefit," and the existence of a benefit available to all is a precondition of the case. Second, Virginia's strong presumption of constitutionality and the long-standing AG practice of not declaring statutes unconstitutional unless certain beyond a reasonable doubt counseled restraint.

Common questions

Did Trinity Lutheran wipe out Virginia's § 15.2-953?
No. The AG concluded that Trinity Lutheran does not change the scope of Virginia local authority. Section 15.2-953 still controls what localities can do. The statute may be vulnerable to as-applied challenges in some circumstances, but it has not been struck down.

Can a Virginia locality contribute funds to a religious organization for non-religious purposes (like operating a homeless shelter or food pantry)?
According to this opinion, generally no, unless one of the narrow exceptions in § 15.2-953(A) or (B) applies. The statute does not distinguish between religious and non-religious uses; it excludes church-controlled institutions categorically. The exceptions cover specific categories like elderly housing, hospitals, nursing homes, fire and EMS services, and historical commemoration.

What is the Establishment Clause limit if a locality wants to give to a religious organization under one of the exceptions?
The AG noted that the Lemon test applies: the action must have a predominately secular purpose, its principal or primary effect must neither advance nor inhibit religion, and it must not foster excessive entanglement with religion. Even when the statute authorizes a contribution, the Establishment Clause is an independent constitutional limit.

Would a locality that excludes a church-affiliated charity from a grant program be sued?
Possibly, depending on facts. The AG declined to opine on the precise risk in the abstract, because evaluating a Free Exercise or equal-protection challenge requires specific facts about the program, the alternative grantees, and the basis for exclusion. The lesson is that localities cannot assume § 15.2-953 alone protects them from constitutional challenges.

Why didn't the AG just say the statute is unconstitutional?
Two reasons. First, Virginia AGs traditionally do not declare statutes unconstitutional unless certain beyond a reasonable doubt; the duty to enforce or defend statutes counsels restraint. Second, the AG noted that the statute can have valid applications (such as denying funding that would advance religion or violate the Establishment Clause), so it could survive facial challenge even if some applications are unconstitutional.

What is the "generally available public benefit" test?
A 1995 AG opinion described examples like police and fire protection, road and sidewalk maintenance, sanitation, and bus transportation for public-school students. Trinity Lutheran arguably expanded the category to include competitive grant programs that allocate benefits based on neutral, secular criteria. The Trinity Lutheran dissent disagreed with calling a competitive grant a "generally available benefit," but the majority's framing controls.

Could the General Assembly amend § 15.2-953 to align it with Trinity Lutheran?
The Delegate's request had also asked for recommended amendment language. The AG declined to provide it, citing both the traditional limits on AG opinions (which interpret existing law rather than draft legislation) and Virginia's constitutional separation of powers. That is a question for the General Assembly itself.

Citations

• Va. Code § 15.2-953
• Va. Const. art. IV, § 16
• Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)
• Locke v. Davey, 540 U.S. 712 (2004)
• Everson v. Bd. of Educ., 330 U.S. 1 (1947)
• Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
• McDaniel v. Paty, 435 U.S. 618 (1978)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• United States v. Salerno, 481 U.S. 739 (1987)
• 1995 Op. Va. Att'y Gen. 164
• 1995 Op. Va. Att'y Gen. 149

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2018/17-038-Mullin-Trinity_Lutheran-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

February 15, 2018

The Honorable Michael P. Mullin
Member, Virginia House of Delegates
Post Office Box 14011
Newport News, Virginia 23608

Issues Presented
You ask whether, in light of the decision of the United States Supreme Court in Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), Virginia localities may now contribute funds
to churches or sectarian societies either in furtherance of their religious activities or for activities that do
not directly impact their religious activities. You further inquire whether localities that continue to make
contributions only to non-sectarian charitable institutions in accord with § 15.2-953 to the exclusion of
those "controlled in whole or in part by any church or sectarian society" due to the absence of enabling
legislation under the Dillon Rule would be subject to suit under the First and Fourteenth Amendments of
the United States Constitution.[1]

Background
The First Amendment to the United States Constitution provides that "Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof ...."[2] These two
clauses, known as the Establishment Clause and the Free Exercise Clause, respectively, apply to the
States through the Due Process Clause of the Fourteenth Amendment.[3] The Establishment Clause
generally requires government neutrality towards religion.[4] As evident in its name, the Free Exercise
Clause prohibits government interference with the free exercise of religion, such as through
discrimination[5] or burdensome regulation.[6] The Supreme Court has "long said that 'there is room for play
in the joints'" between the two religion clauses, such that "there are some state actions permitted by
the Establishment Clause but not required by the Free Exercise Clause."[7]

In Trinity Lutheran Church of Columbia, Inc. v. Comer,[8] the case that is central to your inquiry,
the United States Supreme Court recently clarified, to a degree, the contours of this "room for play in the
joints." Trinity Lutheran involved a church-run preschool and daycare center (the "Center") that applied
to the Missouri Department of Natural Resources ("the Department") for competitive grant funding
through the Missouri Scrap Tire Program, which awards funding to qualified nonprofit organizations for
the purchase of playground surfaces made from recycled tires.[9] The Center ranked highly among
applicants and would have been selected, but for the Department's "policy of categorically disqualifying
churches and other religious organizations from receiving grants under its playground resurfacing
program."[10]

The Court held that the Department's policy violated the Free Exercise Clause, because it led to
"expressly denying a qualified religious entity a public benefit solely because of its religious character."[11]
The Court reasoned that "the exclusion of [the Center] from a public benefit for which it is otherwise
qualified, solely because it is a church, is odious to our Constitution ... and cannot stand."[12] Applying
the "strictest scrutiny,"[13] the Court declared that "only a state interest 'of the highest order' [could] justify
the Department's discriminatory policy."[14] Further, the Court found that the Department's policy
interfered with the free exercise of religion, because it "put[] [the Center] to a choice," such that it must
decide whether to "participate in an otherwise available benefit program or remain a religious
institution."[15]

Although the "parties agree[d]" that the Establishment Clause did not bar inclusion of the Center
in the grant program,[16] the Department contended that a provision of the Missouri Constitution forbidding
both direct and indirect state funding of any religious entity "compelled" their policy.[17] Unpersuaded, the
Court found that "[i]n the face of ... clear infringement on free exercise," such an interest "cannot qualify
as compelling."[18]

The Court distinguished Trinity Lutheran from its prior decision in Locke v. Davey,[19] pointing out
that in Locke the State of Washington provided scholarships to students attending religious schools and
had "merely chosen not to fund a distinct category of instruction."[20] The Court further noted that Davey
"was not denied a scholarship because of who he was; he was denied a scholarship because of what he
proposed to do-use the funds to prepare for the ministry."[21] "[T]here is no question that Trinity
Lutheran was denied a grant simply because of what it is-a church."[22]

Applicable Law and Discussion

1. Whether, in light of Trinity Lutheran, localities may now contribute funds to churches or sectarian
   societies either in furtherance of their religious activities or for activities that do not directly impact their
   religious activities.

Virginia abides by the Dillon Rule of strict construction, which provides that a locality may
exercise only those powers expressly granted by the Commonwealth, those necessarily or fairly implied
therefrom, and those that are essential and indispensable.[23] Section 15.2-953(A) of the Code of Virginia
delegates to localities limited authority to contribute funds, donations, and gifts to churches or sectarian
organizations. This statute provides that

[a]ny locality may make appropriations of public funds, of personal property or of any
real estate and donations to ... any charitable institution or association, located within
their respective limits or outside their limits if such institution or association provides
services to residents of the locality; however such institution or association shall not be
controlled in whole or in part by any church or sectarian society.[24]

But the statute does not prohibit all gifts to churches and sectarian organizations. Subsection A further
provides that the restriction does not apply to nondenominational Young Men's Christian Associations or
nondenominational Young Women's Christian Associations.[25] And subsection B specifically exempts the
following types of organizations from the restriction: "(i) any charitable institution or nonprofit or other
organization providing housing for persons 60 years of age or older or operating a hospital or nursing
home; (ii) any association or other organization furnishing voluntary firefighting services; [and] (iii) any
nonprofit or volunteer emergency medical services agency, within or outside the boundaries of the
locality."[26]

In addition, subsection B authorizes gifts and donations to certain other types of nonprofit
organizations, regardless of whether they are sectarian or nonsectarian.[27] For example, "[a] locality may
make ... gifts and donations to any and all public and private nonprofit organizations and agencies
engaged in commemorating historical events."[28] I note, however, that a locality acting pursuant to one of
these statutory exceptions must comply with the Establishment Clause.[29]

In answer to your question, I thus conclude that § 15.2-953(A) generally prohibits localities from
contributing funds, gifts, or donations to charitable institutions that are "controlled in whole or in part by
any church or sectarian society" unless permitted by one of several narrow statutory exceptions. Whether
the contribution would be used in furtherance of religious activities, as opposed to activities that do not
directly impact religious activities, does not alter this conclusion.

Although Trinity Lutheran does not alter the scope of authority possessed by Virginia localities,
your inquiry raises the question whether specific applications of their authority under § 15.2-953 may
contravene the Free Exercise Clause in light of Trinity Lutheran. "In assessing the constitutionality of
[§ 15.2-953], ... I am guided by the doctrine that a statute is not to be declared unconstitutional unless the
court is driven to that conclusion."[30] "There is a strong presumption in favor of the constitutionality of
statutes."[31] "Indeed, '[t]here is no stronger presumption known to the law than that which is made by the
courts with respect to the constitutionality of an act of Legislature.'"[32] Prior opinions of this Office have
concluded that

[e]very reasonable doubt should be resolved in favor of the constitutionality of an act of
the legislature. Following this doctrine, it has been a longstanding practice of Virginia's
Attorneys General to refrain from declaring a statute unconstitutional unless its
unconstitutionality is clear beyond a reasonable doubt. This practice has its origins in
well-founded considerations. Unlike a court, the Attorney General has no power to
invalidate a statute. Thus, when an Attorney General opines that a statute violates the
Constitution, that statute nevertheless remains in force. Further, by opining that a statute
is unconstitutional, an Attorney General, in effect, is advising the enforcing state agency
to ignore the statute. This an Attorney General should not do unless he is certain beyond
a reasonable doubt that a reviewing court would strike down the statute.[33]

Further, in one opinion dating back to 1995, this Office was unable to "conclude beyond a reasonable
doubt that a court would declare that [a section of the Code of Virginia] violate[d] the First and
Fourteenth Amendments of the Constitution of the United States," even though "there [were] serious
questions concerning the constitutionality of [the statute]" and it was "possible, perhaps even probable, that
a court reviewing [the statute] would find that it" is unconstitutional.[34]

In light of Trinity Lutheran, § 15.2-953 likely would run afoul of the Free Exercise Clause if it
required a locality to deny generally available public benefits to qualifying churches or sectarian
organizations solely upon the basis of their religious status, when such benefits are expended for non-religious purposes. One could argue that § 15.2-953's explicit prohibition against providing funding,
gifts, or donations to religiously-controlled or -affiliated charitable institutions violates Trinity Lutheran's
proscription against "denying a generally available benefit solely on account of religious identity."[35]

Because the ruling in Trinity Lutheran concerned the provision of "generally available public
benefit[s],"[36] the definition of what constitutes a "generally available public benefit" is central to the
analysis. A prior opinion of this Office describes such benefits to include police and fire protection, road
and sidewalk maintenance, sanitation services, and bus transportation for public school students.[37] This
opinion goes on to note that "[n]either the federal constitution nor the Virginia Constitution prohibits
religious groups from receiving such publicly funded benefits."[38] Trinity Lutheran arguably expands this
category to a limited degree by classifying the Missouri Scrap Tire Program as such a benefit.[39] Similar
to the examples cited above, the competitive grant program allocated benefits based on neutral, secular
objectives,[40] and the grant funding was "generally available" to all qualified applicants.[41]

Thus, to defend against constitutional challenge, a locality could contend that § 15.2-953 does not
require the provision of generally available public benefits; rather, it authorizes localities to render
selective assistance in the form of discretionary appropriations, donations, and gifts. Subsection F
confirms that this statute does not require localities to make public benefits generally available to
charitable organizations. It clearly states that "[n]othing in this section shall be construed to obligate any
locality to appropriate funds to any entity," and that any "[s]uch charitable contribution shall be
voluntary."[42] Unlike the specific program at issue in Trinity Lutheran, § 15.2-953 arguably does not
involve "generally available public benefits," nor does it obligate localities to provide such benefits to
qualified organizations.

Even if a court were to find that a specific application of § 15.2-953 violated the Free Exercise
Clause, the statute nevertheless may withstand facial challenge. The Supreme Court of Virginia has
stated that, "because our jurisprudence favors upholding the constitutionality of properly enacted laws, we
have recognized that it is possible for a statute or ordinance to be facially valid, and yet unconstitutional
as applied in a particular case."[43] "The fact that the [challenged statute] might operate unconstitutionally
under some conceivable set of circumstances is insufficient to render it wholly invalid ...."[44] Thus, "[a]
facial challenge to a legislative Act is ... the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would be valid."[45]
Supposing a court were to find a particular application of § 15.2-953 unconstitutional, the statute may still
survive facial challenge on the basis that it is not unconstitutional in all applications. For example, the
statute may constitutionally apply to prohibit a local grant of funds or other gifts that would further
sectarian purposes, have the primary effect of advancing religion, or foster excessive government
entanglement with religion.[46] Under such circumstances, one could argue that the statute does not
function to prohibit local grants on account of the religious identity of the recipient, but rather to limit the
authority of localities in accord with the Establishment Clause.

Although I am unable to opine on the merits of a free-exercise challenge to § 15.2-953 absent the
particular details of such a claim,[47] I note that in a scenario analogous to that in Trinity Lutheran, a court
likely would require a locality to demonstrate a compelling interest to justify its actions under strict
judicial scrutiny.[48] Just as the Court in Trinity Lutheran held that compliance with a provision of the
Missouri Constitution did not constitute a compelling interest that would justify religious discrimination,
a locality likely could not rely upon an analogous provision in the Virginia Constitution to defend against
a similar challenge.[49]

For the reasons stated above, it is my opinion that Trinity Lutheran renders § 15.2-953 vulnerable
to constitutional challenge under the Free Exercise Clause. In light of the historical deference of this
Office to acts of the General Assembly and for other reasons set forth above, however, I am unable to
conclude that § 15.2-953 "is unconstitutional beyond a reasonable doubt."[50] Further, in the absence of the
details of a particular claim, I am unable to opine as to either the likelihood that a reviewing court would
invalidate the statute or the probability that an as-applied challenge would succeed under the Free
Exercise Clause.

2. Whether a locality that continues to make contributions only to non-sectarian charitable institutions in
   accord with § 15.2-953 to the exclusion of those "controlled in whole or in part by any church or sectarian
   society" could be subject to suit for allegedly violating the First and Fourteenth Amendments.

You also ask whether withholding funding, gifts, and donations from religiously-controlled or
-affiliated charitable organizations under § 15.2-953 could expose a locality to liability under the United
States Constitution. It is possible that disparate treatment on the basis of religious status may give rise to
liability under the First[51] or Fourteenth Amendment,[52] depending on the particulars of the claim. But
because assessing the validity of such a claim would require additional, hypothetical facts, I am unable to
opine on that question.[53]

Conclusion

It is my opinion that a locality may only contribute funds, gifts, or donations to charitable
organizations "controlled in whole or in part by any church or sectarian society" when authorized by one
of the narrow exceptions contained in § 15.2-953 of the Code of Virginia in accord with the Dillon Rule.
For the reasons set forth above, I am unable to conclude beyond a reasonable doubt that a reviewing court
would invalidate this statute under the Free Exercise Clause in light of Trinity Lutheran.

I further conclude that withholding funding, gifts, and donations from religiously-controlled or
-affiliated charitable organizations under § 15.2-953 could expose a locality to liability under the First and
Fourteenth Amendments of the Constitution of the United States, depending on the particulars of the
claim. But because assessing the validity of such a claim would require additional, hypothetical facts, I
am unable to opine on that question.
With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

1. Your request also contained the following question: "[I]f § 15.2-953 needs to be amended, what language would you recommend to address the issues raised by the Trinity Lutheran decision." Providing such a recommendation would exceed the traditional role of this Office in providing official opinions. See 2010 Op. Va. Att'y Gen. 56, 58; 2002 Op. Va. Att'y Gen. 266, 267. Further, it would contravene the constitutional mandate that "[the] legislative, executive, and judicial departments shall be separate and distinct." VA. CONST. art. III, § 1. Thus, I must respectfully decline to answer this portion of your request.
2. U.S. CONST. amend. I.
3. See Everson v. Bd. of Educ., 330 U.S. 1, 7-8 (1947) ("The First Amendment [is] made applicable to the states by the [Due Process Clause of the] Fourteenth ....") (citing Murdock v. Pennsylvania, 319 U.S. 105, 108 (1943)); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) ("The fundamental concept of liberty embodied in [the Fourteenth Amendment] embraces the liberties guaranteed by the First Amendment.").
4. Everson, 330 U.S. at 18 (holding that the Establishment clause "requires the state to be a neutral in its relations with groups of religious believers and non-believers").
5. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 525-27, 538, 580 (1993) (invalidating under the Free Exercise Clause a facially neutral city ordinance that prohibited ritualistic animal sacrifices, because it "singled out [a religious practice] for discriminatory treatment").
6. See McDaniel v. Paty, 435 U.S. 618, 620, 627, 633, 635 (1978) (striking down a Tennessee statute that disqualified ministers from serving as delegates to the State's constitutional convention as burdensome upon the free exercise of religion, because the law denied a benefit solely upon the basis of religious status); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 625-26, 642 (1943) (holding that a school can offer the Pledge of Allegiance to the flag but cannot require children of Jehovah's Witnesses to recite the pledge, due to the religion's objection to honoring "idols").
7. Locke v. Davey, 540 U.S. 712, 718-19 (2004) (quoting Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 669 (1970) ("Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.")).
8. 137 S. Ct. 2012 (2017).
9. Id. at 2017. The grant program is funded through an extra charge on the sale of new tires in the State. Id. Public and private schools, nonprofit daycare centers, and other nonprofit entities are eligible to compete for grant funding. Id.
10. Id.
11. Id. at 2024.
12. Id. at 2025.
13. Id. at 2019 (quoting Church of Lukumi, 508 U.S. at 533).
14. Id. at 2024 (quoting McDaniel, 435 U.S. at 628).
15. Id. at 2021-22. "[W]hen the State conditions a benefit in this way, ... the State has punished the free exercise of religion . . . ." Id. (citing McDaniel, 435 U.S. at 626). Cf. Locke, 540 U.S. at 720-21 (citations omitted) (upholding the policy of the State of Washington to deny scholarship funding to students pursuing devotional degrees to train for the ministry, because it did not force "students to choose between their religious beliefs and receiving a government benefit").
16. 137 S. Ct. at 2019.
17. Id. at 2017. Article I, section 7 of the Missouri Constitution 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, 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.
18. 137 S. Ct. at 2024. The Court found that "the Department offer[ed] nothing more than Missouri's policy preference for skating as far as possible from religious establishment concerns." Id.
19. Locke, 540 U.S. at 717, 722, 724 (holding that, "[e]ven though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution," the decision of the State of Washington to withhold state scholarship money from a student training to become a minister did not violate the Free Exercise Clause due to the State's substantial antiestablishment interests). See also supra note 15.
20. Trinity Lutheran, 137 S. Ct. at 2023 (quoting Locke, 540 U.S. at 721).
21. Id.
22. Id. After issuing its decision, the Court decided to vacate the judgment in two cases and remand them to the appropriate state supreme court for further consideration in light of Trinity Lutheran. See Douglas Cty. Sch. Dist. v. Taxpayers for Pub. Educ., 137 S. Ct. 2327 (June 27, 2017), No. 15-577; N.M. Ass'n of Non-public Sch. v. Moses, 137 S. Ct. 2325 (June 27, 2017), No. 15-1409. The first overturned judgment had invalidated a school district's voucher program under an antiestablishment provision of the Colorado constitution. Douglas Cty. Sch. Dist. v. Taxpayers for Pub. Educ., 351 P.3d 461 (Colo. 2015). The second remanded case concerns a state-funded textbook lending program in New Mexico, which was found to violate a provision of the New Mexico Constitution that forbade the provision of books for use by students attending private schools, whether such schools were secular or sectarian. Weinbaum v. Skandera, 367 P.3d 838 (N.M. 2015).
23. Richmond v. Bd. of Supvrs., 199 Va. 679, 684 (1958) (citations omitted) (setting forth the Dillon Rule as it applies to municipal corporations); Bd. of Supvrs. v. Horne, 216 Va. 113, 117 (1975) (citations omitted) (applying the Dillon Rule to boards of supervisors).
24. VA. CODE ANN. § 15.2-953(A) (Supp. 2017) (emphasis added). Subsection A further provides that "[n]othing in this section shall be construed to prohibit any county or city from making contracts with any sectarian institution for the care of indigent, sick or injured persons." Id. This statute authorizes localities to provide funds, donations, and gifts to private charitable institutions. The Constitution of Virginia, however, prohibits the General Assembly from making such expenditures. See VA. CONST. art. IV, § 16 (emphasis added): [t]he General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society. Nor shall the General Assembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth; the General Assembly may, however, make appropriations to nonsectarian institutions for the reform of youthful criminals and may also authorize counties, cities, or towns to make such appropriations to any charitable institution or association.
25. Section 15.2-953(A).
26. Section 15.2-953(B).
27. Id.
28. Id.
29. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted). Under the Lemon test, government action comports with the Establishment Clause when "(1) it has a predominately secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive government entanglement with religion." 2006 Op. Va. Att'y Gen. 164, 167 (citing Mellen v. Bunting, 327 F.3d 355, 367 (4th Cir. 2003); McCreary County v. A.C.L.U., 125 S. Ct. 2722, 2735-36 (2005) (discussing the secular-purpose prong of the Lemon test)).
30. 1995 Op. Va. Att'y Gen. 164, 168.
31. FFW Enters. v. Fairfax County, 280 Va. 583, 590 (2010) (citing Town of Ashland v. Bd. of Supvrs., 202 Va. 409, 416 (1961); Hunton v. Commonwealth, 166 Va. 229, 236 (1936)). See also 1997 Op. Va. Att'y Gen. 40, 44 n.33 (quoting Roanoke v. Michael's Bakery Corp., 180 Va. 132, 142 (1942)) ("[S]tatutes will be upheld even when 'their constitutionality is debatable.'").
32. FFW Enters., 280 Va. at 590 (quoting Whitlock v. Hawkins, 105 Va. 242, 248 (1906)).
33. 1995 Op. Va. Att'y Gen. 164, 165 (internal citations and quotation marks omitted) (quoted in 2010 Op. Va. Att'y Gen. 111, 112; 2007 Op. Va. Att'y Gen. 30, 34-35; 2000 Op. Va. Att'y Gen. 29, 31-32).
34. 1995 Op. Va. Att'y Gen. 164, 165. Cf. 1995 Op. Va. Att'y Gen. 170, 172 (opining that a Virginia statute "would not survive constitutional challenge" in light of a United States Supreme Court case striking down an Ohio statute that was "essentially the same").
35. Trinity Lutheran, 137 S. Ct. at 2019.
36. Id. at 2024.
37. 1995 Op. Va. Att'y Gen. 149, 151 ("[T]here are certain public benefits that, under long-established constitutional doctrine, do not implicate Establishment Clause concerns when such benefits are extended to religious groups."). See also id. (citing Widmar v. Vincent, 454 U.S. 263, 274-75 (1981); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) ("[W]e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge ...."); Lee v. Weisman, 505 U.S. 577, 630 n.8 (1992) (Souter, J., concurring) (Establishment Clause is not violated when "the State has, without singling out religious groups or individuals, extended benefits to them as members of a broad class of beneficiaries defined by clearly secular criteria"); Mueller v. Allen, 463 U.S. 388, 398, 403 (1983) (upholding constitutionality of Minnesota program permitting all parents, including parents who chose religious schools, to deduct from their state taxes certain educational expenses); Walz, 397 U.S. at 666, 672-73, 680 (upholding property tax exemptions for churches as part of general statutory exception for variety of nonprofit institutions)).
38. 1995 Op. Va. Att'y Gen. 149, 151. Certain public benefits, such as "furnishing fire or police protection, or access to public highways ... are matters of common right, part of the general need for safety. Certainly the fire department must not stand idly by while the church burns." Everson, 330 U.S. at 60-61.
39. The dissent in Trinity Lutheran disagreed with the broadening of this classification, remarking that "[t]he Scrap Tire Program offers not a generally available benefit but a selective benefit for a few recipients each year. In this context, the comparison to truly generally available benefits is inapt." Trinity Lutheran, 137 S. Ct. at 2040 (Sotomayor, J., dissenting, joined by Ginsburg, J.). "To fence out religious persons or entities from a truly generally available public benefit-one provided to all, no questions asked, such as police or fire protections-would violate the Free Exercise Clause." Id.
40. Id. at 2017.
41. Id. at 2024.
42. Section 15.2-953(F).
43. Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 336 (2010) (citations omitted). "[A] statute ... may be held constitutionally invalid as applied ... although its general validity as a measure enacted in the legitimate exercise of state power is beyond question." Id. at 336 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)).
44. United States v. Salerno, 481 U.S. 739, 745 (1987).
45. Id. at 745. See Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997) (internal citations omitted) (noting that "this Court is bound to apply the Salerno standard as it has been repeatedly applied ... in the context of challenges to legislative acts based on other constitutional grounds"). See also Reno v. Flores, 507 U.S. 292, 300-01 (1993) (applying the Salerno standard to evaluate a facial challenge to a federal regulation under the guarantees of due process contained in the Fifth and Fourteenth Amendments).
46. See Lemon, 403 U.S. at 612-13 (citations omitted). In Lemon, the Court invalidated under the Establishment Clause two state aid programs that partially subsidized teachers' salaries at church-related elementary and secondary schools. Id. at 606-10, 624-25. One of the invalidated programs also provided funding for textbooks and other instruction materials. Id. at 610-11. See also supra notes 19-22.
47. See, e.g., 2013 Op. Va. Att'y Gen. 213, 216 ("I am unable to opine [where the] determination ... would depend on specific facts" not provided with the opinion request).
48. Trinity Lutheran, 137 S. Ct. at 2022.
49. See VA. CONST. art. IV, § 16, supra note 24.
50. 2007 Op. Va. Att'y Gen. 30, 31.
51. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 137-38, 146 (1987) (holding that the State's refusal to award unemployment benefits violated the Free Exercise Clause, when the employee was discharged after refusing to work certain scheduled hours because of sincerely held religious convictions).
52. See, e.g., Blagman v. White, 112 F. Supp. 2d 534, 539-40 (E.D. Va. 2000) (finding that Muslim inmates were not treated differently from Christian inmates in violation of the Equal Protection Clause of the Fourteenth Amendment, because they were afforded essentially equal opportunities). "Challenges to discrimination based on religion are hardly ever brought under the Equal Protection Clause," and "are almost always analyzed under the Free Exercise and Establishment Clauses." Susan Gellman & Susan Looper-Friedman, Thou Shalt Use the Equal Protection Clause for Religion Cases (Not Just the Establishment Clause), 10 U. PA. J. CONST. L. 665, 666 (2008). See also Trinity Lutheran, 137 S. Ct. at 2024 n.5 ("Based on this holding, we need not reach the Church's claim that the policy also violates the Equal Protection Clause.").
53. See, e.g., 2010 Op. Va. Att'y Gen. 56, 58 ("In instances when a request ... involves application of facts to the law, and does not involve a question of law[,] ... this Office traditionally has declined to render an opinion.... I refrain from commenting on matters that would require additional facts or the application of facts to the appropriate provisions of law.").