The Supreme Court is expected to rule this month in a case brought by Trinity Lutheran Church of Columbia, Missouri, against the state. At first blush, the dispute seems like a simple playground dispute. But the ruling could have powerful implications for the separation of church and state and the funding of religious schools in the United States.
The church’s grievance dates back to 2012, when its preschool applied for a state grant to purchase scrap tire materials to resurface its playground. The grant program, administered by the Missouri Department of Natural Resources, aims to reduce the number of tires in landfills while fostering child safety. Although Trinity Lutheran was ranked fifth out of 44 applications, the state denied its grant application because of a provision in the Missouri state constitution prohibiting the use of public funds for churches. So Trinity Lutheran sued.
Trinity claims the denial constituted religious discrimination in violation of the First Amendment’s Free Exercise Clause. “This religious exclusion wrongfully sends a message that some children are less worthy of protection simply because they enjoy recreation on a playground owned by a church,” lawyers for the church wrote in their brief to the Supreme Court. “This is not a mild disapproval of religion but implicates the physical safety of both students and neighborhood kids.”
Although the Supreme Court agreed to hear the case, Trinity Lutheran Church v. Comer, in early 2016, oral arguments were delayed following the death of Justice Antonin Scalia, who many assume would have sided with the church. The eight-person court, seemingly unwilling to tackle the issue without a tie-breaking vote, waited to schedule the hearing until after it was clear that Justice Neil Gorsuch would be joining them. Gorsuch, who favored religious institutions in religious freedom cases while on the Tenth Circuit, is expected to be the tie-breaker in favor of the church, assuming it is a split case at all. During oral arguments on April 19, the majority of the justices seemed sympathetic to Trinity Lutheran’s claims.
But the case is about more than playground resurfacing. At its core, it’s a case about the parameters of public funding for religious institutions. Previous Supreme Court rulings have established that states may give certain forms of aid to churches, but Trinity Lutheran is taking this a step further. As Marci Hamilton, professor at Yeshiva University’s Benjamin N. Cardozo School of Law, put it, “They’re trying to turn ‘Yes you have permission to give funding to religious organizations’ to a ‘You must give it to them.’”
For those of us who are worried about the erosion of public education, Trinity Lutheran also poses a larger threat. The case could be a landmark decision in the separation of church and state, opening the door to increased funding of religious schools through state voucher programs, which can drain resources away from public schools.
The separation of church and state in the United States has rarely ever been the hard line, or wall, that it’s made out to be in the popular imagination. Churches are eligible for certain federal grants (as long as they don’t use them for religious activities), and many religious institutions, like hospitals and schools, can benefit from Medicaid, Medicare, and federal student loans. Even certain forms of official prayer are permitted in local town hall meetings.
States can’t directly pay to erect a church building, which would amount to “establishing” a state religion, but what remains up for dispute is whether any other forms of direct aid are permissible. Did the state of Missouri discriminate against Trinity Lutheran Church on the basis of religion? Or was Missouri justified in denying the church a cash grant because it is a religious institution? Those questions lie at the intersection of the Free Exercise and Establishment Clauses of the First Amendment, which form the foundation of American religious freedom law.
Under current law, states can provide some aid to religious organizations, but there has to be some kind of inquiry as to whether that aid will be diverted to religious uses. For example, in 1947, the Supreme Court held that states could reimburse students for the cost of bussing to religious schools if that aid was provided to all students, no matter what school they attended. At the time, four dissenting justices argued that this kind of aid, funded by taxpayers, still helped children receive religious instruction, and was thus unconstitutional. Later, the court held that government aid to religious schools doesn’t advance religion as long as that aid is secular and offered to all groups equally. Direct cash aid to religious institutions—like the kind at stake in the current Supreme Court case—has remained off the table.
Now with the Court poised to possibly rule in favor of Trinity Lutheran, it’s clear that these boundaries are shifting. A ruling for Trinity Lutheran could create a “major change” in the understanding of the Establishment Clause, according to Caroline Mala Corbin, professor at University of Miami School of Law. “If you had asked a religion scholar 40 years ago what they thought of a case involving cash grants to churches, just about everyone’s reaction would be this obviously violates the Establishment Clause,” Corbin said. “The fact that they’re claiming the denial of a cash grant to a church violates the Free Exercise is really rather astonishing, because there is good reason to think it still does violate the Establishment Clause.” According to Trinity Lutheran, Missouri violated its free exercise rights because the scrap tire program singled out and excluded churches “solely because of who they are.”
Trinity Lutheran’s own arguments here are telling. The church has claimed its religious free exercise rights were infringed while at the same time claiming the playground is wholly secular in nature. During oral arguments, Justice Sonia Sotomayor was the only one to probe this line of reasoning. Throughout her questioning, she seemed skeptical of the idea that Trinity Lutheran’s free exercise had been threatened, noting that the church would not need to stop its religious practices or even close its doors because its playground could not be resurfaced. “You have a playground,” she said. “No one is taking the playground away from you.”
But the banality of the dispute, and the narrative of children being deprived of a safe space to play, also works in the church’s favor. “I personally have no personal problem with a school getting tires for its playgrounds,” said historian Steven Green, who directs the Center for Religion, Law & Democracy at Willamette. “It seems like a discrete form of aid. In that sense, these facts aren’t outrageous or egregious.” But, he added, it’s the precedent that’s worrisome.
The Supreme Court hasn’t ruled on the question of direct aid to churches since 2000, when a plurality held in Mitchell v. Helms that the government can provide aid to religious schools—in that case, library materials and computer equipment—as long as that aid is non-religious and granted equally to non-religious groups. But the court stopped short of permitting cash aid to churches. A ruling in favor of Trinity Lutheran would cross that line.
Much of the Supreme Court’s decision in Trinity Lutheran will turn on its interpretation of the 2004 ruling in Locke v. Davey, which found there is “room for play in the joints” between the two religion clauses. In that case, the court upheld a Washington state scholarship program that excluded students pursuing a degree in “devotional theology.” Although the state could have included those students, it didn’t violate the Free Exercise Clause by excluding them, the justices found. “There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause,” Justice William Rehnquist wrote in the court’s opinion.
Justice Antonin Scalia wrote a fiery dissent arguing that the exclusion of the theology students from the scholarship program discriminated against religion. Rehnquist responded that that the state never forced students to choose between their religious beliefs and a government benefit. It simply chose not to fund a certain type of instruction. In other words, there’s a difference between burdening religion and defunding it.
In the Trinity Lutheran case, even a narrow ruling for the church—which might hold that states can’t withhold funding for neutral, secular programs—could require governments to provide large amounts of money to church facilities. Even though scrap tires might serve a secular purpose, receiving the grant to refurbish the playground would allow the church to spend its money elsewhere, on religious activities.
A broader ruling might require states to fund religious organizations through neutral programs, like religious secondary schools through voucher programs, or faith-based drug treatments through neutral social services programs.
This is what has school choice opponents worried. Among their drawbacks, voucher programs increase segregation and drain resources from public schools (which are funded on a per-pupil basis), and, when they are used for private and religious schools, reduce taxpayer accountability. Since the great majority of private schools in the United States are religious (nearly 80 percent, according to the Department of Education), any opening for increased state funding of religious organizations would be a boon to school choice advocates.
Some states already allow vouchers and education savings account programs to be used in religious schools, since the money goes to parents and not to the institutions directly. But it’s still a contested arena, and a strong Supreme Court ruling could increase the amount of funding granted by states for school vouchers that can be used by private, religious schools. None of this would happen immediately, of course. Trinity Lutheran is just one battle in a longer fight.
Nevertheless, nearly any outcome for the church would grant churches greater access to government programs while letting them keep all the benefits their special status currently affords. Unlike other institutions, churches and religious schools receive less oversight and are exempt from many anti-discrimination laws, like those that protect LGBT students. In exchange for those exemptions and their tax-exempt status, they’re not eligible for all forms of state aid. Religious organizations could potentially ask to have it both ways—to be exempt from certain regulations while still receiving grant money.
“James Madison would not be happy,” said Greg Lipper, a former senior litigation counsel for Americans United for Separation of Church and State. He argued, “Anything but the narrowest win for Trinity Lutheran could put us down a path in which the First Amendment not only permits but requires taxpayer-funded religious discrimination.”
Even if the church wins, the lawsuit has contributed to the narrative that the liberal, elite U.S. government, including the Supreme Court, has become increasingly hostile towards religion. Indeed, when referencing this case, some conservative Christians have drawn parallels between Catholics of the nineteenth-century and themselves today. Trinity Lutheran and its supporters claim that the provision in Missouri’s constitution prohibiting taxpayer money from being spent on a church is inherently biased. The provision, known colloquially as a Blaine Amendment, exists in 38 state constitutions. These amendments arose in part out of nineteenth-century, anti-Catholic sentiment. Its original intent was to prohibit the use of public funds for any private, religious schools. Ten prominent historians argued in an amicus brief that the no-funding principle arose before significant waves of Catholic immigration to the United States, but Trinity Lutheran has highlighted the Blaine Amendment’s anti-Catholic roots in order to bolster its case that the Missouri grant program was discrimination, plain and simple. “You’re forcing them to choose between exercising their religious faith and receiving a public benefit,” Alliance Defending Freedom’s David A. Cortman, who argued on behalf of the church, told the Supreme Court at oral arguments.
Rick Garnett, a Notre Dame law professor, believes the facts of the case are firmly in Trinity Lutheran’s favor. He also said the fears about the decision’s impact on education are unreasonable. “Recycled tire scraps to a daycare center that happens to be run by a Lutheran church—that doesn’t seem like theocracy on the march,” he said. “For some of the more professional folks who are worried about school choice, they have to think about ways to make this case scarier than it seems to people.”
Other legal scholars agree with the church that it’s simply a matter of equality. Michael McConnell, a former Tenth Circuit judge who now teaches at Stanford Law School, said, “What it comes down to is whether children attending a daycare can be denied safety benefits just because of the religious affiliation of the daycare when there’s no public policy benefit at all.” McConnell called the state’s argument that a ruling for the church might force the government to fund religious schools “ridiculous.” Fred Gedicks, a law professor at Brigham Young University, said, “It seems hard to imagine pieces of rubber tire being converted to a sectarian use. It is obviously aid to a church, but one could argue it’s aid to the church in the same sense public utilities are aid to a church, or the fire department or the police department.” It should be noted, however, that fire and police protection are universal benefits. Missouri’s scrap tire grant program was always limited to qualifying institutions.
Yet Gedicks does worry about the policy impact of the case, even as he thinks the dire warnings from some critics are overblown. “I think anything that facilitates the channeling of greater funds to private schools, which in most states tend to be overwhelmingly religious schools, is likely to weaken public schools by carving up the segments of the electorate that are committed to paying for and improving and making sure we have a strong public school system.” When it comes to funding for religious schools, the case won’t open up any doors that aren’t already open, he said. It might just open them wide enough to cause more damage.
Stephanie Russell-Kraft is a Brooklyn-based freelance reporter covering the intersections of religion, culture, law and gender. She has written for The New Republic, The Atlantic, The Hill, Religion Dispatches, among others, and is a regular contributing reporter for Bloomberg Law.