Parents of small children know that rubberized playground surfaces prevent scraped knees. The state of Missouri discovered another benefit too. Repurposing recycled tires for playground surfaces reduces waste in the environment. Missouri created the Playground Scrap Tire program, with grants for qualifying organizations (like schools and nonprofits) to purchase material made from recycled tire bits. So everyone wins, right?
Not so fast. In 2012, the Trinity Lutheran Church Child Learning Center in Columbia applied for such a grant to resurface its playground. The Missouri Department of Natural Resources ranked the preschool’s qualifications as fifth of 44 applicants, and 14 projects were funded. But the department rejected the preschool’s application and declined to grant any funds simply because it is run by a church.
To support its decision, Missouri relied on its constitutional provisions that prohibit government aid to “sectarian” institutions. Such provisions — called Blaine Amendments — are currently found in over 30 state constitutions and originated from late 19th century anti-Catholicism.
The anti-Catholic prejudice — old, tired and wrong — that motivated state Blaine Amendments then has now metastasized into discrimination against religious organizations of all faiths that blocks them from receiving generally available state aid around the country. Five of the current U.S. Supreme Court justices (Scalia, Kennedy, Thomas, Ginsburg and Breyer) have signed opinions that brand Blaine Amendments as anti-Catholic, and three justices (Scalia, Thomas and Kennedy) have specifically noted that Blaine Amendments were “born of bigotry” and “should be buried now.” Yet they remain ensconced in many state constitutions and are still used to discriminate against religious groups.
On Jan. 15, the U.S. Supreme Court agreed to hear the Missouri tires-for-playground case, Trinity Lutheran Church v. Pauley. The court will decide whether excluding religious groups from such a state-created benefit program violates the U.S. Constitution. The court’s decision will likely have major implications for government aid to religious schools.
What should the court do? Interpret the U.S. Constitution as the Founders clearly did: embracing a principle of governmental neutrality in matters of faith, a guard against the state favoring a particular religion. The Constitution does not require government indifference toward religion and does not permit government exclusion of religion. The state cannot discriminate against religion by treating religious organizations worse than secular ones.
In the court’s decision, the justices will likely grapple with a Supreme Court precedent a decade ago that likewise dealt with state grants and religion. In that 2004 decision — Locke v. Davey — the Supreme Court (in a 7-2 vote) sided with the state of Washington, upholding its scholarship program, which expressly excluded funding to students who majored in “devotional theology.” In Locke, the court was persuaded that granting a scholarship to a theology major at a private Christian school paralleled our Founding Fathers’ concerns over funding the training of clergy.
In this year’s case, Trinity Lutheran, the justices will likely address whether, under the Locke precedent, Missouri can exclude the church’s preschool from its otherwise neutral state benefits program. Here, there is no legitimate concern that the funding would lead to an establishment of religion in violation of the First Amendment. Recycled tire bits insulate children’s brains — not inspire or indoctrinate them.
Since Locke was decided, four new justices have joined the court — Chief Justice Roberts and Justices Alito, Sotomayor and Kagan. And of the justices who decided Locke, only three (Kennedy, Ginsburg and Breyer) voted in the majority, while two dissented (Scalia and Thomas). The Trinity Lutheran case will test the direction of the current court on these kinds of government aid cases.
Because Missouri has created a generally available secular benefits program to provide safe playgrounds for young Missourians, churches should not be excluded from receiving funds that aid non-religious groups as well. Anti-Catholicism of the 19th century should not be grounds for a 21st century state-endorsed bigotry. That bigotry against religious groups has led to unfair play. It is old and tired and “should be buried now.”
Hannah C. Smith twice clerked at the United States Supreme Court and is a member of the Deseret News Editorial Advisory Board. She is senior counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund wrote an amicus brief in support of the Trinity Lutheran Church. Follow Hannah on Twitter @hclaysonsmith.