              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 14-1382
                     ___________________________

                Trinity Lutheran Church of Columbia, Inc.

                    lllllllllllllllllllll Plaintiff - Appellant

                                        v.

                Sara Parker Pauley, in her official capacity

                    lllllllllllllllllllll Defendant - Appellee

                          ------------------------------

                  The Becket Fund for Religious Liberty

              lllllllllllllllllllllAmicus on Behalf of Appellant(s)

             American Civil Liberties Union Foundation, et al.

               lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                    ____________

                  Appeal from United States District Court
            for the Western District of Missouri - Jefferson City
                              ____________

                        Submitted: January 15, 2015
                           Filed: May 29, 2015
                              ____________

Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
                           ____________
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:




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

                                          -2-
      [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,



                                         -3-
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 (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
(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.




                                          -4-
      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

      2
       These two Sections are construed together to make up Missouri’s
Establishment Clause. See St. Louis Univ. v. Masonic Temple Ass’n of St. Louis,
220 S.W.3d 721, 725 (Mo. banc 2007).

                                          -5-
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 required by the First
      Amendment does not present any substantial federal constitutional
      question.

Id. at 386 (quotation and citations omitted). Plaintiffs appealed to the Supreme Court
of the United States. The Court summarily affirmed. Two Justices dissented, arguing
the Court should have noted probable jurisdiction and set the case for argument on
two questions, whether the different treatment of public-school and parochial-school
children violated equal protection principles, and whether the arbitrary denial of a
general public service made the State an “adversary” of religion. 419 U.S. at 890
(White, J., dissenting).

      When the Supreme Court summarily affirms a lower federal court, its decision
“prevent[s] lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided,” but the Court has affirmed only the judgment, not
necessarily the rationale of the lower court. Mandel v. Bradley, 432 U.S. 173, 176

                                         -6-
(1977). Here, while the parameters of the Supreme Court’s summary affirmance in
Luetkemeyer may not be free from doubt, given the issues addressed in the dissent
from summary affirmance, we conclude that the Court necessarily decided that Article
I, § 7, of the Missouri Constitution is not facially invalid. That conclusion is
supported by the Court’s prior summary affirmance in Brusca v. State of Mo. ex rel.
State Bd. of Educ., 332 F. Supp. 275, 279-80 (E.D. Mo. 1971) (concluding that
Article IX, § 8, and Missouri statutes denying public funds to sectarian schools for
religious instruction do not violate the Free Exercise or the Equal Protection clauses),
aff’d, 405 U.S. 1050 (1972); see also Wheeler v. Barrera, 417 U.S. 402, 412 n.9, 421-
22, 426 (1974).

       Trinity Church requests injunctive relief compelling Missouri to provide grants
directly to churches, funding that is prohibited by a provision of the Missouri
Constitution that has been a bedrock principle of state law for nearly 150 years.
Without question, a state constitutional provision is invalid if it conflicts with either
religion clause of the First Amendment, or with the Fourteenth Amendment’s Equal
Protection Clause. We also recognize that the Supreme Court’s Establishment Clause
jurisprudence has evolved rather dramatically in the forty years since Luetkemeyer
was decided. For example, it now seems rather clear that Missouri could include the
Learning Center’s playground in a non-discriminatory Scrap Tire grant program
without violating the Establishment Clause. But the issue here is not what the State
is constitutionally permitted to do, but whether the Free Exercise Clause, the
Establishment Clause, or the Equal Protection Clause compel Missouri to provide
public grant money directly to a church, contravening a long-standing state
constitutional provision that is not unique to Missouri.

      No Supreme Court case, before or after Luetkemeyer, has granted such relief.
Indeed, in Locke v. Davey, 540 U.S. 712 (2004), the Court upheld State of
Washington statutes and constitutional provisions that barred public scholarship aid
to post-secondary students pursuing a degree in theology. The Court noted the

                                          -7-
“popular uprisings against procuring taxpayer funds to support church leaders, which
was one of the hallmarks of an ‘established’ religion.” Id. at 722. In Locke, “the link
between government funds and religious training [was] broken by the independent
and private choice of [scholarship] recipients,” id. at 719, prompting the Court to
examine carefully the “relatively minor burden” the scholarship exclusion placed on
students taking devotional theology courses, id. at 725. By contrast, in this case there
is no break in the link. Trinity Church seeks to compel the direct grant of public
funds to churches, another of the “hallmarks of an ‘established’ religion.” Therefore,
while there is active academic and judicial debate about the breadth of the decision,
we conclude that Locke reinforces our decision that Luetkemeyer is controlling
precedent foreclosing Trinity Church’s facial attack on Article I, § 7, of the Missouri
Constitution.

      Justice Scalia, dissenting for himself and Justice Thomas in Locke, articulated
a contrary view of the First Amendment’s religion clauses:

      When the State makes a public benefit generally available, that benefit
      becomes part of the baseline against which burdens on religion are
      measured; and when the State withholds that benefit from some
      individuals solely on the basis of religion, it violates the Free Exercise
      Clause no less than if it had imposed a special tax.

Id. at 726-27. If the Court were to adopt this view, and if Justice Scalia’s reference
to withholding benefits to “individuals” were held to include direct public benefits
to churches, then Article I, § 7, of the Missouri Constitution could not be validly
applied to deny church participation in a host of publicly-funded programs. That may
be a logical constitutional leap in the direction the Court recently seems to be going,
but it is a leap of great magnitude from the Court’s decisions in Luetkemeyer and in
Locke. In our view, only the Supreme Court can make that leap. As the Court has
often reminded us, a court of appeals “should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.” Agostini v.

                                          -8-
Felton, 521 U.S. 203, 237 (1997) (an Establishment Clause decision). We therefore
follow Luetkemeyer and the many Supreme Court of Missouri decisions concluding
that Article I, § 7, of the Missouri Constitution does not conflict with the First
Amendment or the Equal Protection Clause of the United States Constitution.

       For these reasons, we conclude that the district court correctly dismissed
Trinity Church’s federal constitutional claims for failure to state a claim upon which
relief could be granted.3



      3
        Even if Luetkemeyer were not controlling, we see little merit to Trinity
Church’s constitutional arguments, based on existing precedent. The Supreme Court
in Locke expressly recognized that “there are some state actions permitted by the
Establishment Clause but not required by the Free Exercise Clause.” 540 U.S. at 719.
Until the Court rules otherwise, the direct expenditure of public funds to aid a church
is a paradigm example of that type of state action. “There is no relevant precedent for
using [the Establishment Clause’s] negative prohibition as a basis for extending the
right of a religiously affiliated group to secure state subsidies.” Strout v. Albanese,
178 F.3d 57, 64 (1st Cir.), cert. denied, 528 U.S. 931 (1999); see Bronx Household
of Faith v. Bd. of Educ. of City of N.Y., 750 F.3d 184, 198 (2d Cir. 2014), cert.
denied, --- S. Ct. ---, 2015 WL 1400936 (2015); Eulitt ex rel. Eulitt v. Maine, Dept.
of Educ., 386 F.3d 344, 355 (1st Cir. 2004). DNR’s decision to deny the grant
application because Trinity Church is a “church” within the meaning of Article I, § 7,
of the Missouri Constitution hardly required an excessive entanglement with religion,
unlike the state statute at issue in Colorado Christian Univ. v. Weaver, 534 F.3d 1245,
1250-51 (10th Cir. 2008) (requiring consideration of factors to determine whether a
scholarship applicant was ineligible because the institution of higher education was
“pervasively sectarian”).

       As the district court recognized, in the absence of a valid Free Exercise claim,
Trinity Church’s Equal Protection Claim is governed by rational basis review. Locke,
540 U.S. at 720 n.3. The high wall of separation between church and state created by
Article I, § 7, is a historic and substantial State interest that DNR was obligated to
obey in administering the Spare Tire grant program. This interest clearly satisfies
rational basis review. See Luetkemeyer, 364 F. Supp. at 383-84 and cases cited.

                                         -9-
                      III. The Missouri Constitutional Claim

        Trinity Church’s fifth cause of action alleged that the DNR’s grant denial
violated the second clause of Article I, § 7, which forbids “any discrimination made
against any church,” and that granting the application would not have violated the
first clause because it would not have been “in aid of any church.” Though pleaded
last, this was the only claim argued at length by Trinity Church at the hearing on
defendant’s motion to dismiss, and it was the lead argument in its brief on appeal
(seemingly an implicit acknowledgment the federal constitutional claims are weak).
This inversion of the theories pleaded distracted the district court from a very serious
issue -- after dismissing the federal claims, should the court have declined to exercise
its supplemental jurisdiction over a state law claim that is based on an important
provision of the Missouri Constitution and turns on the proper interpretation of rather
ambiguous Supreme Court of Missouri precedents? We think that question should
have been answered affirmatively, but we will nonetheless review the district court’s
dismissal of this claim on the merits.

       Under Missouri law, the district court had jurisdiction to decide the state law
claim pleaded in the initial Complaint because whether Article I, § 7, permits DNR
to deny Scrap Tire Program grants to all church applicants is an issue of law. See
Premium Std. Farm, Inc. v. Lincoln Twp., 946 S.W.2d 234, 237-38 (Mo. banc 1997)
(exhaustion of administrative remedies is a jurisdictional issue); Motor Control
Specialties, Inc. v. Petelik, 258 S.W.3d 482, 485-86 (Mo. App. 2008). Turning to the
merits, we agree with the district court that the two clauses of Article I, § 7, must be
interpreted in harmony. See Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118,
122 (Mo. banc 2014); Wring v. City of Jefferson, 413 S.W.2d 292, 300 (Mo. banc
1967). Therefore, if granting Trinity Church’s application would have constituted
“aid” to a church prohibited by the first clause of Article I, § 7, then denying the grant
was not a discriminatory action prohibited by the second clause. So the district court
properly focused on Trinity Church’s contention that a Scrap Tire Program grant is

                                          -10-
not “aid” within the meaning of the first clause of Article I, § 7, because it involves
a quid pro quo, with the applicant undertaking obligations under the Scrap Tire
Program in exchange for the granted funds. On appeal, Trinity Church argues the
court erred in rejecting this interpretation of state law.

       Trinity Church bases its contention on the reasoning in two Supreme Court of
Missouri decisions, Kintzele v. City of St. Louis, 347 S.W.2d 695 (Mo. banc 1961),
which Trinity Church did not cite to the district court, and Americans United v.
Rogers, 538 S.W.2d 711 (Mo. banc), cert. denied, 429 U.S. 1029 (1976), which the
district court described as “grossly misrepresented” by Trinity Church. Concluding
that the quid pro quo exception to Article I, § 7’s, prohibition was not supported by
any Missouri case, the court instead relied on the many Supreme Court of Missouri
decisions that “strictly interpreted [Article I] Section 7 to prohibit public funding of
religious institutions” in order to maintain “the higher wall of separation between
church and state present in the Missouri Constitution.” See Paster, 512 S.W.2d at
104-105 (invalidating statute requiring public school boards to provide textbooks to
private school students); Bereghorn v. Reorg. Sch. Dist. No. 8, 260 S.W.2d 573, 582-
83 (Mo. 1953); McVey v. Hawkins, 258 S.W.2d 927, 933-34 (Mo. 1953) (enjoining
use of public school buses to transport students to religious schools); Harfst v.
Hoegen, 163 S.W.2d 609, 613-14 (Mo. 1941) (enjoining use of public school funds
for the teaching of religion and faith at a parochial school that was taken into the
public school system); accord Luetkemeyer, 364 F. Supp. at 383-84 (upholding the
State’s refusal to provide transportation to church-sponsored schools); Brusca, 332
F. Supp. at 279-80 (the State may deny funds to sectarian schools for religious
instruction).

        Based on these decisions, the district court concluded that Trinity Church’s
state law claim under the Missouri Constitution must be dismissed because its “own
pleadings demonstrate that funds from [DNR] in the form of the Scrap Tire Program
would aid the Church and its Ministry Learning Center within the meaning of

                                         -11-
Missouri law.” We agree with this assessment of how the Supreme Court of Missouri
would decide this claim. In Kintzele, plaintiffs alleged that a subsidized sale of land
by the State to St. Louis University constituted an unconstitutional use of public
funds in aid of a private sectarian school. The Court declined to invalidate the sale,
concluding that, because Missouri law authorized “sale by negotiation at fair value,”
and the State tried competitive bidding and thereafter sold the land to SLU at nearly
twice the highest bid, “plaintiffs’ contention of illegal . . . subsidy from public funds
cannot be sustained.” 347 S.W.2d at 700-701. This decision in no way supports
Trinity Church’s claim that a Scrap Tire Program grant is not “aid.”

       In Americans United, the Supreme Court of Missouri upheld a statute
providing tuition grants to students at approved public and private colleges. The
statute was invalidated by the trial court, applying Article I, § 7, and Article IX, § 8.
The State appealed. Noting that “[a]n act of the legislature is presumed to be valid
and will not be declared unconstitutional unless it clearly and undoubtedly
contravenes some constitutional provision,” 538 S.W.2d at 716, the Court concluded
it could not “with confidence declare that the statutory program” clearly contravened
these constitutional provisions because “the parochial school cases with which the
court has dealt in the past involved completely different types of educational entities
than the colleges and universities herein involved.” Id at 721-22. The defendants’
quid pro quo argument was noted but not adopted. Id. at 721.

       Americans United demonstrates that Article I, § 7, will be difficult to apply in
some cases, particularly when an expenditure authorized by state statute is challenged
as beyond the State’s constitutional authority. But that decision does not support
Trinity Church’s claim to affirmative relief in this case. In upholding the challenged
program, the Court reaffirmed that the Missouri Constitution is “more restrictive than
the First Amendment to the United States Constitution in prohibiting the expenditures
of public funds in a manner tending to erode the absolute separation of church and
state,” and it noted that the program was “designed and implemented for the benefits

                                          -12-
of the students, not of the institutions, and that the awards are made to the students,
not to the institutions. The legislative purpose in no wise includes supporting aiding
or sustaining either public or private educational institutions.” Id. at 720.

     We affirm the district court’s dismissal of the state law claim under the
Missouri Constitution in Trinity Church’s original Complaint.

                              IV. The Motion to Amend

        Following the district court’s dismissal order, Trinity Church filed a motion to
reconsider that included a motion for leave to amend its Complaint. The proposed
Amended Complaint added a fact paragraph alleging that the DNR had previously
awarded Scrap Tire Program grants to at least fifteen other religious organizations.
It also added a paragraph to the Equal Protection Clause cause of action alleging that
DNR “has allowed other similarly-situated religious organizations to participate in
the Scrap Tire Program.” All other allegations in the ninety-seven-paragraph
Complaint were unchanged. Trinity Church attached as an exhibit a document dated
October 19, 2010, that listed “Prior Recipients of Scrap Tire Surface Material
Grants.” The district court denied the motion because Trinity Church failed to
provide any explanation for failing to amend prior to dismissal of its action.

       “Post-dismissal motions to amend are disfavored.” Medtronic, 623 F.3d at
1208. While a post-dismissal motion may be granted if timely requested, “interests
of finality dictate that leave to amend should be less freely available after a final order
has been entered.” U.S. ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 823 (8th
Cir. 2009). Numerous cases have ruled that unexcused delay is sufficient to justify
denial of post-dismissal leave to amend. United States v. Mask of Ka-Nefer-Nefer,
752 F.3d 737, 743-44 (8th Cir. 2014), and cases cited.




                                           -13-
       On appeal, Trinity Church for the most part ignores this well-established law,
simply distinguishing the cases cited by the district court because Trinity Church was
not “given any warning that it needed to amend its pleadings.” The briefs on appeal
assert that Trinity Church learned in discovery that other religious entities had
received grants, but counsel admitted at oral argument that Trinity Church obtained
the October 2010 listing attached to the proposed Amended Complaint from the DNR
website, where it was doubtless available when Trinity Church filed its Complaint in
January 2013. Thus, the district court did not abuse its discretion in concluding that
Trinity Church failed to provide a valid reason for its failure to amend prior to
dismissal.

       The district court’s alternative futility ruling is more problematic and warrants
de novo consideration. The proposed amended pleading did not alter the allegations
in the First Amendment causes of action based on the Free Exercise Clause and the
Establishment Clause; it only alleged a different type of discrimination violating the
Equal Protection Clause, discrimination between “similarly situated religious
organizations.” Thus, when Trinity Church argued to the district court that its newly
discovered evidence supported the claim that DNR’s grant application denial “lacks
a compelling interest,” the district court was right to observe that this added nothing
to the original claims because, in the absence of a valid Free Exercise or
Establishment Clause claim, the Equal Protection Clause claim was subject to rational
basis review and no compelling interest need be shown.

       There is a problem lurking here, one that was camouflaged by Trinity Church’s
primary contention that Article I, § 7, violates the federal and state constitutions by
mandating that churches be excluded from the Scrap Tire Program. The problem is
that these constitutional claims take on an entirely new complexion if DNR is
awarding Scrap Tire grants to some churches, but not to others. If intentional, that
would be a clear violation of the First Amendment, and no doubt of the Missouri
Constitution as well. See, e.g,, Larson v. Valente, 456 U.S. 228, 246 (1982) (“No

                                         -14-
State can pass laws which aid one religion or that prefer one religion over another”);
Waites v. Waites, 567 S.W.2d 326, 333 (Mo. banc 1978) (“Any suggestion that a state
judicial officer [was] favoring or tending to favor one religious persuasion over
another . . . would be intolerable to our organic law”). If the proposed Amended
Complaint plausibly pleaded this dramatically new theory, did the district court abuse
its discretion in failing to grant leave to amend, even if Trinity Church failed to
clearly articulate the theory? We conclude not, for two distinct but related reasons.

       First, “a district court does not abuse its discretion in refusing to allow
amendment of pleadings to change the theory of a case if the amendment is offered
after summary judgment has been granted against the party, and no valid reason is
shown for the failure to present the new theory at an earlier time.” Littlefield v. City
of Afton, 785 F.2d 596, 610 (8th Cir. 1986) (quotation omitted). In Littlefield, we
affirmed the denial of leave to amend a dismissed § 1983 due process action to assert
a new equal protection claim. Id. at 609. That is directly analogous to the situation
here. The facts were at hand to assert this narrower theory in the initial Complaint,
but Trinity Church chose not to do so. “The district court did not abuse its discretion
in concluding [this] tactical choice did not demonstrate diligence or good cause.”
Morrison Ents., L.L.C. v. Dravo Corp., 638 F.3d 594, 611 (8th Cir.), cert. denied, 132
S. Ct. 244 (2011).

       Second, the new theory we have identified would significantly alter the
lawsuit’s procedural landscape. Under the new theory, both the federal and state
constitutional claims would turn on the fact bases for DNR’s allegedly discriminatory
treatment of similarly situated religious organizations, not on a Constitution-driven
“policy” of not making any grants to churches. For the federal claims, this raises a
serious question of what is called Pullman abstension4 -- “federal courts should
abstain from decision when difficult and unsettled questions of state law must be


      4
          Derived from Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941).

                                         -15-
resolved before a substantial federal constitutional question can be decided.” Hawaii
Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984); see Beavers v. Ark. State Bd.
of Dental Exam’rs, 151 F.3d 838, 840-41 (8th Cir. 1998). Here, a state court would
be in the best position to decide the “difficult and unsettled” question of how Article
I, § 7, and other provisions of the Missouri Constitution and statutes apply to DNR’s
fact-based decisions whether to award Scrap Tire Program grants to particular church-
related applicants. And state court resolution of that question would likely moot or
resolve, and most certainly would affect, a federal court’s resolution of the
substantial, largely overlapping First Amendment and Equal Protection Clause issues.

       For the state law claim, the new theory appears to raise serious jurisdiction and
venue issues under the Missouri Administrative Procedure Act, Mo. Rev. Stat.
§§ 536.010 et seq. See Motor Control Specialties, 258 S.W.3d at 485-87. These
issues would best be resolved by a state court, further supporting Pullman abstention.
In these circumstances, even if the proposed Amended Complaint pleaded a new
theory of relief that was not entirely futile, the district court did not abuse its
discretion in denying an untimely request to fundamentally alter the litigation.

      The judgment of the district court is affirmed.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

       Trinity Lutheran Church (“Trinity Lutheran”) applied for a grant through the
Learning Center, a daycare and preschool that Trinity Lutheran runs. This grant
would allow the Learning Center to make its playground safer by swapping the gravel
that covers it for a rubber surface made from recycled tires. The Missouri Department
of Natural Resources (“the Department”), which administers this grant program,
accepted Trinity Lutheran’s application and ranked it fifth out of the forty-four
applications from that year. The Department approved fourteen grant applications,
but Trinity Lutheran’s was not among them. Relying solely on the Missouri

                                         -16-
Constitution’s prohibition on using public funds to aid a church, Mo. Const. art. I,
§ 7, the Department denied Trinity Lutheran’s grant application. Thus, but for the
fact that the Learning Center was run by a church, it would have received a
playground-surfacing grant. Where, as here, generally available funds are withheld
solely on the basis of religion, the Supreme Court’s decision in Locke v. Davey, 540
U.S. 712 (2004), governs claims brought under the Free Exercise Clause of the First
Amendment. Applying the careful balance struck by Locke, I would conclude that
Trinity Lutheran has sufficiently pled a violation of the Free Exercise Clause as well
as a derivative claim under the Equal Protection Clause.

       The court attempts to impose a barrier to full consideration of Locke. Trinity
Lutheran, the court concludes, challenges the facial validity of Article I, § 7 of the
Missouri Constitution by requesting a 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.” Ante at 5. By framing Trinity Lutheran’s claim this broadly, the court
avoids fully grappling with Locke by merely pointing to an instance in which this
state constitutional provision has been upheld. See United States v. Salerno, 481 U.S.
739, 745 (1987) (requiring a plaintiff raising a facial attack to show “no set of
circumstances” under which a provision would be valid). The court concludes that
the Supreme Court’s summary affirmance in Luetkemeyer v. Kaufmann, 364 F. Supp.
376 (W.D. Mo. 1973), aff’d, 419 U.S. 888 (1974), a case that concerned the separate
issue of busing, id. at 377, is one such application.5

      But Trinity Lutheran does not mount the expansive facial challenge that the
court attributes to it. Trinity Lutheran tries to bring an as-applied challenge; the
complaint says so numerous times. However, determining whether a constitutional

      5
        The Department did not cite Luetkemeyer in its appeal brief. By the court’s
reasoning, the Department’s failure to raise this argument (much less order it first in
its brief) serves as “seemingly an implicit acknowledgement” that this argument is
“weak.” Ante at 10.

                                         -17-
challenge is purely as-applied, purely facial, or somewhere in between turns on
whether the plaintiff’s “claim and the relief that would follow . . . reach beyond the
particular circumstances of the[] plaintiff[].” Doe v. Reed, 561 U.S. 186, 194 (2010).
If they do, the claim is facial but only “to the extent of that reach.” Id. When
analyzing a claim and the relief that would follow, a court should “construe a
plaintiff’s challenge, if possible, to be as-applied.” Am. Fed’n of State, Cnty. & Mun.
Emps. Council 79 v. Scott, 717 F.3d 851, 864 (11th Cir. 2013), cert. denied,
572 U.S. ---, 134 S. Ct. 1877 (2014). Trinity Lutheran, as the court acknowledges,
frames its challenge as an attack on the Department’s “customs, policies, and
practices.” And Trinity Lutheran specifically requests a declaration that the
Department’s denial of its grant application was unconstitutional. Trinity Lutheran
also specifically requests injunctive relief prohibiting the Department from
discriminating against it in future grant applications. Id. at 862 (“We look to the
scope of the relief requested to determine whether a challenge is facial or as-applied
in nature.”). This claim and relief only implicate Trinity Lutheran. See Doe, 561 U.S.
at 194. Consequently, Trinity Lutheran does not contend that Article I, § 7 of the
Missouri Constitution is unconstitutional in all of its applications.

       This brings me to Locke. In the face of a Free Exercise challenge, the Court
upheld a college scholarship program that prevented students from using the
scholarship to pursue a degree in devotional theology, a course of study that the court
characterized as “akin to a religious calling as well as an academic pursuit.” 540 U.S.
at 715, 721, 725. The Court began with the proposition that “there are some state
actions permitted by the Establishment Clause but not required by the Free Exercise
Clause.” Id. at 719. Because the “State’s disfavor of religion (if it can be called
that)” in prohibiting recipients from using the scholarship to major in devotional
theology “is of a far milder kind,” the Court concluded that the scholarship program
was not presumptively unconstitutional. Id. at 720. In upholding the program, the
Court found that it “goes a long way toward including religion in its benefits”—for
example, by allowing recipients to attend pervasively religious schools that are

                                         -18-
accredited and to take devotional-theology courses. Id. at 724-25. To the Court, this
“relatively minor burden” was justified by a “historic and substantial state interest”
of not funding “an essentially religious endeavor.” Id. at 721, 725. This interest, the
Court explained, was rooted in our nation’s history of “popular uprisings against
procuring taxpayer funds to support church leaders” as well as the founding-era
decisions of many states to “place[] in their constitutions formal prohibitions against
using tax funds to support the ministry.” Id. at 721-23. Considering this “historic
and substantial state interest” alongside the “relatively minor burden,” the Court
found no violation of the Free Exercise Clause. Id. at 725.

       Locke did not leave states with unfettered discretion to exclude the religious
from generally available public benefits. To the contrary, Chief Justice Rehnquist’s
opinion for seven members of the Court was careful to acknowledge its parameters.
See id. at 719, 725 (stating that “some” actions are permitted by the Establishment
Clause but not required by the Free Exercise Clause and explaining that “[i]f any
room exists between the two Religion Clauses, it must be here”). “The [Locke]
opinion thus suggests, even if it does not hold, that the State’s latitude to discriminate
against religion is confined to certain ‘historic and substantial state interest[s],’ and
does not extend to the wholesale exclusion of religious institutions and their students
from otherwise neutral and generally available government support.” Colo. Christian
Univ. v. Weaver, 534 F.3d 1245, 1255 (10th Cir. 2008) (McConnell, J.) (alteration in
original) (citation omitted) (quoting Locke, 540 U.S. at 725). Locke “suggests the
need for balancing interests: its holding that ‘minor burden[s]’ and ‘milder’ forms of
‘disfavor’ are tolerable in service of ‘historic and substantial state interest[s]’ implies
that major burdens and categorical exclusions from public benefits might not be
permitted in service of lesser or less long-established governmental ends.” Id. at
1255-56 (alterations in original) (quoting Locke, 540 U.S. at 720, 725). Simply put,
the Locke Court “indicated that the State’s latitude with respect to funding decisions
has limits.” Id. at 1255.



                                           -19-
       Applying the balancing of interests contemplated by Locke, I conclude that
Trinity Lutheran has sufficiently pled a Free Exercise violation. The disfavor of
religion here is more pronounced than in Locke. The student in Locke could use his
scholarship to attend a pervasively religious school that was accredited and to take
courses in devotional theology there. And a pervasively religious school that
received scholarship money even could require its students to take devotional-
theology classes. 540 U.S. at 724-25. The program, as the Court put it, went “a long
way toward including religion in its benefits.” Id. at 724. The same cannot be said
here. Trinity Lutheran has pled that the Department categorically prohibited the
Learning Center from receiving a playground-surfacing grant because it is run by a
church. This blanket prohibition is different in kind from the disfavor of religion that
was present in Locke. Whereas the Locke program excluded religious study while
also including it, id. at 724-25, the Department has entirely excluded the Learning
Center from receiving a playground-surfacing grant. Much like the Tenth Circuit, I
read Locke to impose some bounds on such a “wholesale exclusion of religious
institutions and their students from otherwise neutral and generally available
government support.” Colo. Christian, 534 F.3d at 1255.

        The Department’s reason for singling out the Learning Center differs from the
historic and substantial state interest in Locke, where the state sought to avoid paying
for the training of clergy, “an essentially religious endeavor.” 540 U.S. at 721-23.
The sheer religiosity of this activity led the court to remark that “we can think of few
areas in which a State’s antiestablishment interests come more into play.” Id. at 722.
It is true that the Department’s interest in enforcing Article I, § 7 of the Missouri
Constitution is historic in the sense that this provision is longstanding. But the state’s
interest in Locke traced to concerns that were specific to paying for training the
clergy. Id. at 722-23. The Court was unequivocal about this point: “[T]he only
interest at issue here is the State’s interest in not funding the religious training of
clergy.” Id. at 722 n.5. Here, by contrast, the Department seeks to enforce a general
prohibition on aid to a church that is in no way specific to the playground-surfacing

                                          -20-
grant program. This case therefore lacks the correspondence between the past and the
Department’s present interest that the Court found significant in Locke. Cf. id.
(“Nothing in our opinion suggests that the State may justify any interest that its
‘philosophical preference’ commands.”); McDaniel v. Paty, 435 U.S. 618, 628-29
(1978) (plurality opinion) (explaining that “the American experience provides no
persuasive support” for an antiestablishment concern even though several states had
constitutional provisions on the topic); Bronx Household of Faith v. Bd. of Educ. of
N.Y., 750 F.3d 184, 195 (2d Cir. 2014) (“We do not mean to imply that merely by
claiming the motivation of observing interests favored by the Establishment Clause
a governmental entity gets a free pass, avoiding all scrutiny.”), cert. denied,
575 U.S. ---, 135 S. Ct. 1730 (2015).

        Perhaps more importantly, the substantial antiestablishment interest identified
in Locke is not present here. Unlike a student preparing for the ministry, which is “an
essentially religious endeavor,” 540 U.S. at 721, schoolchildren playing on a safer
rubber surface made from environmentally-friendly recycled tires has nothing to do
with religion. If giving the Learning Center a playground-surfacing grant raises a
substantial antiestablishment concern, the same can be said for virtually all
government aid to the Learning Center, no matter how far removed from religion that
aid may be. When the Locke Court spoke of a substantial antiestablishment concern,
I seriously doubt it was contemplating a state’s interest in not rubberizing a
playground surface with recycled tires. See Bronx Household of Faith, 750 F.3d at
194 (“Underlying the Board’s prohibition [of hosting religious services in school
facilities] is a slightly different manifestation of the same historical and constitutional
aversion to the use of public funds to support the practice of religion cited by the
Court in Locke.”).

       In light of the Department’s negligible antiestablishment interest, I conclude
that the court overstates the significance of the Department’s concern about giving
a grant directly to the Learning Center, rather than having the money filtered through

                                           -21-
the independent choice of private individuals. “Although private choice is one way
to break the link between government and religion, it is not the only way.” Am.
Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278, 295 (6th Cir.
2009). Indeed, even though the playground-surfacing program involves a direct
transfer of funds to the Learning Center, the court concludes that “it now seems rather
clear that Missouri could include the Learning Center’s playground in a non-
discriminatory Scrap Tire program without violating the Establishment Clause.” Ante
at 7. I agree. See Am. Atheists, 567 F.3d at 295 (collecting cases to demonstrate that
the Supreme Court “has sustained a number of neutral aid programs that distributed
aid directly to religious organizations—without filtering the aid through private
choice—where the aid itself had no religious content and any actual diversion was de
minimis”). And I, of course, agree with the court that, in many cases, a concern about
giving money directly to a church-run school may amount to a historic and substantial
state interest. Indeed, were it to be uncovered during discovery that the Learning
Center regularly uses its playground for religious activities, my Free Exercise concern
would be less acute. However, at this stage of the litigation, I cannot conclude that
the Department’s concern about direct funding for a rubber playground surface
translates into a historic and substantial antiestablishment concern.

      In concluding that Trinity Lutheran has stated a claim under the Free Exercise
Clause, I acknowledge that “[t]he precise bounds of the Locke holding . . . are far
from clear.” Colo. Christian, 534 F.3d at 1254. However, the best reading of Locke,
in my view, is that in the absence of a historic and substantial interest, the
Department’s “latitude to discriminate against religion . . . does not extend to the
wholesale exclusion of religious institutions and their students from otherwise neutral
and generally available government support.” See id. at 1255. I therefore
respectfully dissent from the court’s affirmance of the dismissal of Trinity Lutheran’s
Free Exercise claim. Because this claim is linked to Trinity Lutheran’s Equal
Protection claim, I dissent from the court’s disposition of this claim as well. See
Locke, 540 U.S. at 720 n.3. Moreover, because I would reverse the district court’s

                                         -22-
dismissal of Trinity Lutheran’s complaint, I need not reach the separate question of
whether the district court abused its discretion by denying Trinity Lutheran’s motion
to amend that complaint. See Lormand v. US Unwired, Inc., 565 F.3d 228, 232 n.2
(5th Cir. 2009); see also Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 358 n.70
(5th Cir. 1989) (“For purposes of our remand, we only point out to the trial court that
leave to amend should be freely granted and denied only upon a showing of prejudice
to the other party.”). I otherwise concur in the court’s opinion.
                        ______________________________




                                         -23-
