April 20, 2017

What Does a Playground Have to Do With Religious Liberty?

Missouri denied grant funding to a church solely because it’s a church. The Supreme Court is considering the case.

What could pro-LGBT advocacy group Lambda Legal possibly have against a state-funded grant to fix a pre-school playground? When the playground sits on the property of a church that is at the center of a potentially landmark Supreme Court ruling, the answer is: a lot.

On Wednesday, the High Court heard oral argument in Trinity Lutheran Church of Columbia v. Comer. At issue is whether Missouri can discriminate against religious institutions in public aid programs. In 2012, the Missouri church, which also runs a daycare center and preschool program, applied for a grant through a state program that helps non-profits install rubber playground surfaces. The church’s application ranked fifth out of 44 submissions, yet Trinity was disqualified from receiving one of the 14 grants. The reason? The state claimed giving the church funds would violate the state constitutional provision against providing public funding for religious organizations.

Trinity Lutheran sued, and after losing in federal district court and on appeal in the Eighth Circuit, the church now faces SCOTUS’ judgment.

The case is significant for more than one reason. For starters, it represents Justice Neil Gorsuch’s first major religious liberty case since joining the Court. While SCOTUS agreed to hear the case before Justice Antonin Scalia’s death last year, the Court delayed oral argument until nine justices were seated, suggesting concern there may be a 4-4 ruling otherwise. And while it’s nearly impossible to predict what a newly minted Supreme Court justice will do, Gorsuch’s record on the Tenth Court of Appeals — where he sided with Hobby Lobby and Little Sisters of the Poor against ObamaCare mandates — suggests his respect for religious liberty. Yet, as The Daily Signal cautions, Gorsuch “has yet to rule on a [religious liberty] funding case. So this could be different territory.”

Perhaps even more notably, this case could have tremendous impact nationwide not only on public funding for religious institutions in general but on school choice specifically. In 2002, SCOTUS ruled in Zelman v. Simmons-Harris that including religious schools in school voucher programs does not violate the Constitution’s establishment clause. Now, Trinity could take this ruling one step further. As American Enterprise Institute director of education-policy studies Frederick Hess and research assistant Grant Addison explain, “Having determined in Zelman that states are constitutionally permitted to include religious schools in school-choice programs, the Court will now decide whether states are prohibited from discriminating against religious schools when providing public services.”

Currently, 38 states have constitutional restrictions against using public funds for religious organizations — so-called “Blaine Amendments,” named for Representative James G. Blaine, who in the late 19th century proposed a federal constitutional amendment prohibiting tax dollars designated for public education from going to religious sects. That amendment was the product of anti-Catholic bigotry.

Although Blaine’s federal amendment failed, 38 states implemented similar provisions. Indeed, Missouri used its own Blaine amendment to deny Trinity Lutheran’s grant application. The program has nothing to do with religion, and it will not fund the church’s religious activities at all, but the Show Me State rejected the application on the basis of religion. Needless to say, then, a SCOTUS ruling that Trinity Lutheran cannot be excluded from competitive state grants solely because it is a religious institution could have wide-reaching consequences.

It’s precisely because of this potential that groups from both sides of the culture war — from Lambda Legal and the National Education Association to the Christian Legal Society, the Institute for Justice, and many others — have taken a keen interest in this case.

It’s not about whether a playground will be re-surfaced; it’s about whether our nation will continue twisting the First Amendment to make it as hostile to religion as possible.

While the Court could dismiss the case — especially after Missouri’s new governor, Eric Greitens, recently announced a reversal in state policy that will allow religious organizations to compete for grants — SCOTUSblog reporter Amy Howe concludes it seems more likely the justices will issue a ruling. And if the line of questioning at yesterday’s oral argument hints at that ruling, the majority may conceivably not be a slim one. Howe reports that Justice Stephen Breyer seemed “unconvinced” by some of the state’s argument and Justice Elena Kagan “signaled a willingness to vote for the church.”

Of course, judicial reactions during oral argument have led prognosticators astray before, and this case still may come down to one vote when a ruling is issued, likely in late June. No matter the outcome, it’s a ruling that impact religious liberty for decades to come. Either such discriminatory Blaine amendments remain on the books in 38 states, or they’re eroded and religious liberty gains ground. In this case, literal ground.

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