Misusing ‘Separation of Church and State’

Missouri denies kids safe playground surfaces for wrong reasons

by Tiffany H. Bates | Updated 07 Sep 2016 at 7:47 AM

When Thomas Jefferson penned his famous but often misunderstood phrase about “building a wall of separation between Church & State” (in his letter to the Danbury Baptists), it’s doubtful he expected a state to use it to justify denying children safe playground surfaces. But that didn’t stop Missouri from doing just that.

This fall, the U.S. Supreme Court will weigh in on Missouri’s actions in Trinity Lutheran Church of Columbia v. Pauley.

“One can hardly imagine a clearer case of discrimination than denying children a safe playground surface solely because they attend a religious preschool.”

It all started innocently enough. To keep old tires from piling up in landfills and to make playgrounds safer for children, Missouri decided to kill two birds with one stone. It would give grants to nonprofits to install rubber surfaces made from recycled tires on their playgrounds.

When Trinity Lutheran Church of Columbia, which runs a preschool and day care, applied for one of these grants, Missouri denied its application for the sole reason that Trinity Lutheran is a church.

Despite rating Trinity Lutheran’s application number five out of 44 submissions, Missouri claimed it was required to categorically exclude churches from the grant program to avoid establishment clause issues under the state constitution.

Article 1 Section 7 of Missouri’s Constitution states that “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Dozens of states enacted similar laws or constitutional amendments barring the use of state funds at “sectarian” schools in the 19th century (known as Blaine Amendments), which were intended to single out Roman Catholics for disfavored treatment.

Trinity Lutheran challenged its exclusion from the recycled tire program, arguing that since there is no valid concern about violating the Establishment Clause of the federal Constitution, a state may not exclude a church from a public grant program solely because it is a church.

Related: That Sunday Sermon May Not Be Spiritual

Doing so, they assert, is “an overbroad and unconstitutional restriction on the faithful’s ability to participate on equal terms in public life” — a restriction that violates the Free Exercise and Equal Protection clauses of the federal Constitution.

As Trinity Lutheran notes in its brief: “One can hardly imagine a clearer case of discrimination than denying children a safe playground surface solely because they attend a religious preschool.”

Missouri, on the other hand, argues that the Free Exercise clause does not require it to “subsidize churches.” Missouri relies on a 2004 case, Locke v. Davey, in which the Supreme Court held that a state could refuse to give publicly funded state scholarships to students studying devotional theology.

Missouri claims that this doctrine allows them to exclude Trinity Lutheran from the state-funded tire program because there is no “‘break in the link’ between state funds and religion.” The lower court agreed with the state, holding that the Locke case instructed states to withhold public benefits from churches.

Related: Discrimination of Christians in America

But Missouri reads the Locke case too broadly. This case isn’t about subsidizing churches or the education of pastors: Not funding clerical education is quite different from not funding safe playground surfaces. The state actually has yet to explain why or how protecting children on the playground is a benefit to religion.

As Trinity Lutheran notes, “A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane.” Trinity Lutheran also makes clear that it doesn’t want a “subsidy of its religion” but only “freedom from discrimination based on its religious status.”

At its core, this case is about Missouri’s singling out of a church for disfavored treatment. In 1947, in Everson v. Board of Education, the Supreme Court held that the government may not exclude religious people “from receiving the benefits of public welfare legislation.” Then, in 1963, in Sherbert v. Verner, the court held that when government chooses to provide a public benefit, it may not require people to relinquish their free exercise of religion in order to receive that benefit.

Let’s hope the Supreme Court reaffirms these principles this term and once again clarifies that the Free Exercise Clause prohibits Missouri’s discrimination based on religious status.

Tiffany H. Bates is a legal research associate at The Heritage Foundation’s Center for Legal and Judicial Studies in Washington, D.C.

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