Chelsea Langston

The US Supreme Court has agreed to review the case of a Missouri-based religious preschool (owned and operated by a church) that was denied state funding from a program to utilize recycled tires to create softer, safer surfaces for student playgrounds. In 2012, Trinity Lutheran applied to Missouri’s Playground Scrap Tire Surface Material Grant Program, a grant program providing state funds to schools to cover their playground surfaces with rubber from recycled tires. The Missouri Department of Natural Resources denied Trinity Lutheran’s grant application, even though Trinity Lutheran’s scoring in the grant process was high enough that it should have been awarded a grant.

The 8^th Circuit US Court of Appeals and a federal district court denied that Trinity Lutheran Church of Columbia was eligible for the state program because of a provision in the Missouri constitution. Missouri’s constitutionbans governmental funding “directly or indirectly, in aid of any church, sect, or denomination of religion.”

Such state constitutional prohibitions on governmental funding are called Blaine Amendments. Blaine Amendments, still found in 37 state constitutions, came about in the late 1800s as a response to Catholics seeking public funding to start their own schools at a time that public schools were distinctly Protestant in their instruction and culture. Blaine Amendments were put into state constitutions by Protestant public school proponents to ban government funds from going to any “sectarian” (by which they meant Catholic) educational institutions. Note that, both during and after the passage of the Blaine Amendments, public schools continued to openly instruct students in Protestant religious doctrine.

On January 15, 2016, the US Supreme Court justices granted a review of Trinity Lutheran’s case. The appeal asserts that the 8^th Circuit Court of Appeals misinterpreted the Supreme Court’s reasoning in Locke v. Davey. In this case from 2004, the Supreme Court affirmed a Washington state program providing scholarships that left out theology majors against the contention such exclusion was contrary to First Amendment principles of free-exercise. Trinity Lutheran claims that Locke was wrongly interpreted by the 8^th Circuit as mandating the exclusion of a church from “a neutral state aid program where there was no valid concern that the aid would amount to a government establishment of religion.”

Trinity Lutheran’s case to the Supreme Court states “No public benefit could be further removed from the state’s antiestablishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose.” The church (or school) asked the Supreme Court to grant review of the case to confirm that Locke’s latitude is not so broad as to apply to the “wholly secular benefit” of assuring that children have non-dangerous places to play.

It is true that the Trinity Lutheran appeal did not emphasize the problems with the Blaine Amendment in Missouri’s constitution. However, the Supreme Court may very well take up this question, given the pervasiveness and harmful, discriminatory impact of these constitutional provisions still present in the majority of states. “No state can define religious neutrality as treating religious organizations worse than everyone else. That isn’t neutrality; it’s a hostility to religion that violates the First Amendment,” asserted Alliance Defending Freedom Senior Counsel David Cortman in a statement about the court’s decision to review the case.