Joy Branham, IRFA Legal Fellow and Chelsea Langston Bombino, May 25, 2017

Is it constitutional for a state grant program to deny a safer playground to children because they attend a religious school? That is the main question in the Trinity Lutheran v. Comer case that was recently argued before the Supreme Court. Trinity Lutheran is 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.

This case started back in 2012 when 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. Counsel for Trinity Lutheran appealed the state’s decision, but lost at the appellate level as well. The Supreme Court agreed to hear this case on January 15, 2016, but pushed back oral arguments, possibly due to Justice Scalia’s death and a potential tie vote. With nine justices again after the appointment of Justice Gorsuch, the Supreme Court finally heard oral arguments presented by the state and by Trinity Lutheran on April 19, 2017. The appointment of Justice Gorsuch means this Court leans slightly conservative, but this case has the potential to transcend traditional Court divides to bring justices from across the aisle together to uphold religious freedom as a bedrock for educational justice.

The 8th 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 constitution bans government 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. However, a week before oral arguments, the new governor of Missouri reversed the previous interpretation and allowed religious schools to be able to compete for grants on the same basis as secular schools.

Blaine Amendments, still found in 37 state constitutions, came about in the late 1800s as a response to Catholics seeking government funding to support their own schools at a time that government-run 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. These amendments are pervasive, harmful, and discriminatory even though these constitutional provisions are still present in the majority of states.

The Trinity Lutheran appeal did not emphasize the problems with the Blaine Amendment in Missouri’s constitution though. Instead, the oral arguments focused on three main questions:

• Can a state support a non-religious activity of a religious organization?
• Does state funding of a religious organization violate Missouri’s constitution because all activity of a religious organization is religious?
• And, is the state’s penalization of this preschool a violation of the federal Constitution by restricting the school’s exercise of its religion?

For the first question, David Cortman of Alliance Defending Freedom (ADF) who represented Trinity Lutheran argued that this government program provides funding for the surface of a playground, which is not an inherently religious activity. “What we’re talking about is just a surface. It’s not even the entire playground. It’s just the surface that doesn’t enable any religious activity.” Following the oral arguments, the Director of the Trinity Lutheran Child Learning Center said, “We aren’t asking for special treatment. We are just asking to not be treated worse than everyone else. Whether you are a Jewish, Muslim, or Christian kid, or not religious at all, when you fall down on a playground, it hurts just as much at religious preschools as it does at a non-religious one.” The distinction between religious and secular activities at religious schools did not garner too much friction at the Court, but it did lead to the next question.

The second question revolved around the idea that if religion characterizes every aspect of a religious organization, does allowing state funding for a playground violate the Blaine Amendment against giving funding to a religious organization? Faith based organizations often make the argument that their faith-based missions impact every aspect of their organizational lives. In other words, faith-based organizations are called by their sacred missions to engage in distinctive organizational practices that fully embody their faith in the public square.

While advocates of religious freedom for faith-based organizations see this ability to fully live out their organizational faith as essential to their institution’s capacity to fulfill their missions, Justice Sotomayor, while accepting the argument, turned it against religious organizations. She made the point that if Trinity Lutheran lives out its religious practices in all areas of schooling, that would include the playground. She went on to suggest that state funding of a playground at a religious school could be considered to be not only state support of religion, but actual unconstitutional state control of religion as it imposes restrictions to accompany its funding. Trinity Lutheran countered this argument by instead suggesting the government is exhibiting an anti-religious bias by denying the preschool of funds solely because of its religious nature, which leads to the third question.

The third question asks whether the state can deny a school funding based on its religious status. The state set out neutral criteria to decide which applicants would receive funding, and according to those criteria, Trinity Lutheran should have received the grant. But the state denied the grant solely because the school is religious in nature. In a statement about the Court’s decision to hear the case Counsel David Cortman explained it this way, “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.”

Many of the justices seemed to agree that treating a school worse than other schools for exercising their constitutional right to exercise their faith would violate the Free Exercise clause of the First Amendment. In an indication that she might rule in favor of Trinity Lutheran and therefore religious freedom, Justice Kagan made the statement “as long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things. And I would have thought that that’s a pretty strong principle in our constitutional law.” This and other statements by a number of Justices make it plausible that the Court will rule in favor of Trinity Lutheran.

The main takeaway is that the outcome of this case could uphold the free exercise of religion, and this strong constitutional principle will probably transcend traditional ideological divides on the Court. A secondary takeaway is that more action is needed to overturn the Blaine amendments that discriminate based on religion. This case will likely result in a narrow decision from the Court, but religious organizations can be hopeful that the Supreme Court will protect the freedom of faith-based organizations to compete on an level playing field, or play ground, as the case may be, with secular organizations.