Supreme Court Report

Is church is entitled to state aid to buy playground covering?

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U.S. Supreme Court cases about government aid to religious institutions have revolved around tax breaks, school textbooks, transportation, private school vouchers and even computer software. But recycled tires?

A church-state case that has long been touted as one of the marquee appeals of an otherwise low-key term will go before the justices on April 19.

The case involves a Lutheran church in Missouri that operates a preschool and day care. It sought to improve its playground by applying for the state’s scrap-tire grant program, which provides money to install safe, rubberized ground coverings.

Missouri officials turned down the church’s application, which otherwise ranked high on a set of neutral criteria, based on a state constitutional provision that bars direct or indirect government financial aid to churches.

“If you could write your own facts, you couldn’t write them any better,” says David A. Cortman, senior counsel at the Alliance Defending Freedom, the Scottsdale, Arizona-based group that represents the church in Trinity Lutheran Church v. Pauley.

The Columbia church challenged the grant denial as a violation of the First Amendment’s guarantee of free exercise of religion and the 14th Amendment’s equal protection clause. As the church states in its merits brief: “A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane.”

Grounds for support

Missouri argues in its brief that “Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray and practice any other aspect of its faith however it wishes. The state merely declines to offer financial support.”

Trinity Lutheran Church has a learning center for children that it considers to be part of its ministry. The learning center’s outdoor playground has typical jungle gym-type equipment and a surface of pea gravel and grass that sometimes leaves its participants with bumps and bruises.

“The pea gravel is unforgiving if/when a child falls and thereby poses a basic safety hazard,” the church said in its 2012 application for a $20,000 grant from Missouri’s scrap-tire grant program, which is funded by a state tax on new tires and provides an environmentally friendly outlet for used tires.

The church ranked fifth out of 44 applicants for scrap-tire grants that year, based on such criteria as whether an applicant describes its proposed project in adequate detail, whether it has an installation plan, and whether it includes price quotes from at least three vendors. Another, somewhat ironic, criterion is labeled “Media exposure” and states: “Provide a plan to seek media exposure for this project.”

The state awarded 14 grants that year, but it rejected Trinity Lutheran’s application.

“After 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,” the state said in a letter to the church. “Please note that Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.’ ”

GETTing traction

Trinity Lutheran sued based on its free exercise, equal protection and other claims but lost in federal district court. That court rejected the free exercise claim because the scrap-tire program involved a direct payment to a sectarian institution that would raise First Amendment establishment-of-religion concerns that were comparable to those raised by the Supreme Court in its 2004 decision in Locke v. Davey.

In that case, the justices held that the state of Washington could deny a scholarship to a student studying “devotional theology” without running afoul of the free exercise clause.

A panel of the 8th U.S. Circuit Court of Appeals at St. Louis voted 2-1 in Trinity to uphold the district court, expressing concern about the “direct grant of public funds to churches.”

Cortman, the lawyer for Trinity Lutheran, says Missouri “may not target religion for discrimination.”

Government programs that evenhandedly allocate a secular benefit for secular use do not raise establishment clause concerns just because one of the recipients is a religious institution, he says. A contrary rule would allow the government to, say, waive highway tolls for high-occupancy vehicles but not waive the tolls for church buses.

Michael W. McConnell, a former federal appeals court judge and a church-state scholar who teaches at Stanford Law School, has written an amicus brief in support of the church for the Becket Fund for Religious Liberty.

“What we’re talking about here is the government paying for shredded, discarded tires to rubberize the surface of a playground at a day care center that happens to be owned by a church,” he says. “It’s an entirely secular purpose.”

Locke did not overrule the Supreme Court’s precedents that say the Constitution prohibits the denial of an otherwise publicly available benefit to a religious institution, McConnell says.

Trinity Lutheran also argues, relatively briefly, that Missouri’s constitutional provision that bars financial aid to a religion has a “credible connection” to the so-called Blaine Amendment. That is named for the 19th-century congressman James G. Blaine, who led an unsuccessful effort to amend the U.S. Constitution to prohibit public funding of sectarian schools at a time when Roman Catholics were pressing for government funding for parochial schools. About three dozen states have similar language in their state constitutions.

Missouri’s language was adopted as “part of that anti-Catholic movement,” Cortman says. “But our argument is that it is irrelevant today because the result is the same: Those provisions are used to discriminate against churches and religious organizations.”

not treading lightly

Missouri and some of its allies argue that its constitutional provision, although adopted in 1875, was not motivated by anti-Catholic bias.

“The text of Article I, Section 7 is both evenhanded ... and protective of religious freedom,” the state says in its brief. Representatives from the state attorney general’s office declined to be interviewed.

“The people of Missouri have decided, as a matter of state constitutional policy, that public funds may not be directed to churches,” the state brief says. “Forbidding the direct payment of state funds to churches advances legitimate public interests, which include ensuring that no religious denomination receives preferential treatment over another by the state, respecting taxpayers’ concerns of conscience, and protecting religious institutions from heightened government control.”

Steven K. Green, a professor of law and history at Willamette University College of Law in Salem, Oregon, helped write an amicus by legal and religious historians in support of the state. The brief argues that the nation’s commitment to a principle of no direct funding of religion arose independent of anti-religious animus, and that anti-Catholic bias was only one motivation behind the federal Blaine Amendment and its state counterparts.

“You really can’t talk about the pedigree of the no-funding principle without talking about its good history and its bad history,” Green says.

He says the Supreme Court may well have granted review with an inclination to rule for the church.

The scrap-tire grant program appears benign and “seems to be about as far removed from government money advancing a religious message as you can get,” Green says. “But there is a larger principle at stake. This is government funding of a church. This is bricks-and-mortar aid.

“We do not do direct funding of religious institutions in this country and particularly of churches,” Green says. “For the [justices] to reach out and take up a direct funding case like this suggests to me that they are thinking of doing something significant.”

This article originally appeared in the April 2017 issue of the ABA Journal with this headline: "Kick the Tires: Court to decide whether church is entitled to state aid to buy shredded tires for playground covering."

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