Supreme Court seems to lean toward church in Lutheran playground case

By Carol Zimmermann

WASHINGTON (CNS) — Supreme Court justices seemed to side
with the church in a separation of church and state case argued April 19 about
a Missouri Lutheran preschool barred from receiving state funds for playground resurfacing using recycled tires
because it is a church property.

In his
first minutes before the court, David Cortman, arguing for the church in Trinity
Lutheran v. Comer, said: “The question is why would someone’s religious
status matter in the first place to receiving a government benefit?”

justices seemed to settle on that point, questioning the state’s decision to
exclude the church from a grant program when there are federal programs in
place that provide funding that could benefit religious institutions including a
Department of Homeland Security program to improve security near synagogues or
mosques and a program to repair buildings damaged by the bombing at the federal
building in Oklahoma City.

Layton, arguing for the state, said Missouri also would be against such programs because they similarly grant funds to religious institutions.

Layton, former solicitor general of Missouri, said the state would not block police
and fire protection to churches because public safety is different since it is
a service.

He said
the state bars funding from religious institutions to avoid the appearance that
it chooses among different churches or makes physical improvements to them.

justices acknowledged the playground resurfacing issue was more than meets the

church-state divide, it’s a fraught issue. It’s a hard issue,” Justice
Elena Kagan said, also calling the case a “clear burden on a
constitutional right.”

A crowd,
including handfuls of children, gathered outside the court and those favoring
the church position held aloft balloons that spelled out “play fair.”

the 70 minutes of arguments, Justices Ruth Bader Ginsburg and Sonia Sotomayor
didn’t seem to buy the church argument.

said: “This church is not going to close its religious practices or its
doors because its playground doesn’t have these tires. So I’m not sure how this
is a free exercise question, because there is no effect on the religious
beliefs. No one is asking the church to change its beliefs.”

reason cited for preventing the church from getting the grant funding is the Blaine
Amendment in the Missouri Constitution, and in 36 other states, which bars
public money from going to churches:

amendments date back to the 19th century and are named for Rep. James Blaine of
Maine, who tried unsuccessfully in 1875 to have the U.S. Constitution prohibit
the use of public funds for “sectarian” schools.

Justice Samuel Alito brought up the state amendments, he asked if they were based on “anti-Catholic

an attorney with Christian religious liberty group Alliance Defending Freedom, said
history shows “anti-Catholic bigotry that’s behind this specific provision,”
but the establishment clause was really what was being argued here.

Lutheran church said its exclusion from the program violated the Constitution
because it discriminates against religious institutions, but the state has
argued that Constitution’s free exercise clause does not require the government
to subsidize churches or provide equal funding opportunities for religious and
nonreligious groups.

2015, the 8th U.S. Circuit Court of Appeals upheld the state’s decision to deny
the preschool’s grant application.

case has been a longtime coming to the Supreme Court which agreed to hear the
case more than a year ago, a month before the death of Justice Antonin Scalia.
The court, which has been divided on separation of church and state questions,
is now back to a full bench, with the addition of Justice Neil Gorsuch just
days before the oral arguments in this case.

in his first week on the court, was viewed as a key supporter for the church in this case since he ruled in favor of religious freedom in 2013 on the U.S.
Court of Appeals for the 10th Circuit, siding with Hobby Lobby stores that fought
against the contraceptive mandate of the Affordable Care Act.

The new
justice did not ask any questions until near the end when he asked Layton how the
“discrimination on the basis of religious exercise is better in selective
government programs than general programs.”

On religious
discrimination, he said: “There’s no — no line-drawing problem there. We
know that’s happened in this case, right?” He also pointed out later that
“the line is moving.”

playground case almost didn’t make it to court, because just days before the oral
argument the state’s new Republican governor, Eric Greitens, reversed the state policy and said
churches would be eligible for the type of grant the Lutheran school sought in
the future.

court asked both sides April 14 to submit their views on whether the
case should move forward and they both agreed it should. With the new twist, the
Missouri attorney general’s office recused itself and asked the former state
solicitor general to defend the state’s position.

The case
began five years ago when the school applied for a grant reimbursing nonprofit
groups for the cost of purchasing and installing playground surfaces using
recycled tires. The program is funded from a fee on the sales of new tires
meant to reduce the number of tires in the state’s landfills and provide safe
playground surfaces.

Department of Natural Resources, which administers the playground resurfacing
program, ranked Trinity Lutheran’s grant application fifth out of the 44 it
received. The department, which funds 14 grants, denied Trinity Lutheran’s
application because the state constitution prohibits state funds from going
“directly or indirectly, in aid of any church, sect or denomination of

U.S. Conference of Catholic Bishops filed an amicus brief supporting the
preschool, joined by the Missouri Catholic Conference, the National Catholic
Educational Association, the Church of Jesus Christ of Latter-day Saints, the
General Synod of the Reformed Church in America and the Salvation Army.

of Notre Dame Law professor Richard Garnett said separation of church and state
“is supposed to advance religious freedom, by keeping the government from
interfering in religious affairs; it is not supposed to be a warrant for crude

Missouri provision, and many others like it, reflect a deep and pervasive, but
regrettable and misplaced, hostility to the Catholic Church and to Catholic
schools. This hostility was prevalent in 19th-century America, but there is no
reason its influence should continue to block initiatives that serve the common
good,” he added.

decision in Trinity Lutheran v. Comer is expected by late June.

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Zimmermann on Twitter: @carolmaczim.

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