Playground case touches on separation of church and state

Bruno Cirelli
Aprile 20, 2017

Holly Hollman, general counsel for the Baptist Joint Committee, filed a friend-of the-court brief in the case of Trinity Lutheran Church v. Comer. The church applied for the Missouri Scrap Tire Program in 2012 to replace the gravel surface of its playground to provide a safer and more accessible playground for children.

The state ranked Trinity fifth on the list of 44 applicants, but refused it permission to participate. But Missouri's law - similar to those in roughly three-dozen other states - prohibits direct government aid to educational institutions that have a religious affiliation.

But with Missouri Gov. Eric Greitens reversing course last Friday, allowing religious organizations to obtain grants like the one denied Trinity Lutheran, some justices suggested the highly anticipated case might have simply become irrelevant.

There is a procedural wrinkle - that developed on the eve of arguments - that could give the justices an off-ramp to deciding the case, but at oral arguments it didn't receive much attention.

"It does seem as though this is a clear burden on a constitutional right", liberal Justice Elena Kagan said during a one-hour argument, referring to Missouri's prohibition. "No one is asking the church to change its beliefs", she said.

The church's lawyer, David Cortman, answered yes to that question.

ADF said it is defending the long-held First Amendment principle that the government can not exclude religious organizations from government programs that provide purely nonreligious benefits. Currently, a voucher program would require a state constitutional amendment.

Where does establishing end, and prohibiting begin?

Gorsuch, the court's newest member, was subdued by comparison to his active involvement during his first two days of arguments. "The state briefed this case with a vigorous defense of the Department of Natural Resources. and has defended the case on that basis for over four years".

The court accepted the case in January 2016, shortly before the death of conservative Justice Antonin Scalia, and it had been in limbo as Senate Republicans' refusal to consider Barack Obama's nominee left the court shorthanded until after the election. In any event, the case will be an early and useful marker of the kind of Justice that Gorsuch will turn out to be. Such splits mean no nationwide precedent is set.

"The Court's decision in Trinity Lutheran could have implications far beyond scrap tires and church playgrounds", wrote Timothy Keller, a senior attorney with the Institute for Justice.

The surface material increases safety for children and was intended for use on the church's preschool playground, which the entire community uses.

The church said the reimbursement grant had nothing to do with religion, like the scholarship did, while opponents insist the state should not be providing any financial support to religious institutions.

"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". As a result, petitioner Trinity Lutheran Church has received all the substantive relief that it sought in its complaint.

But the justices appeared sympathetic to the church Wednesday, the Post said. The Supreme Court has upheld similar funding prohibitions in the past, but here the church insists that its school was denied funding exclusively on account of its religious status - and that the funds it sought for tire scraps should've been granted because they wouldn't be used for religious instruction.

The case would seem to meet the dictionary definition of moot, as in, "deprived of practical significance". "The government is not funding a religious activity; it's funding the playground where children play".

The American Civil Liberties Union and other groups say the case should be over because the rule change effectively removed the controversy.

This is not a case about the too-often erroneous interpretation that the First Amendment's establishment clause trumps its free exercise clause-that government must always err on the side of treating religious groups like asbestos in the ceiling tiles of society.

I hope and expect that Trinity Lutheran will win.

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