Nine-member Supreme Court hears oral arguments in Missouri playground case


By John Litzler

Today (April 19), the U.S. Supreme Court (SCOTUS) is hearing oral arguments in one of the most important religious liberty cases of the last few decades. SCOTUS, which only had an eight-member court since Justice Antonin Scalia passed away last February, has a full bench for the first time in over a year. In January, President Donald Trump nominated Neil Gorsuch, a judge on the 10th Circuit Court of Appeals. On April 7, Justice Gorsuch was confirmed just in time to begin hearing cases on April 17. This term will end in late June or early July when the Court recesses for the summer before its new term begins in October.

While this term contains several cases concerning the First Amendment, SCOTUS will only hear one case this spring that directly addresses religious liberty. The case, Trinity Lutheran Church v. Pauley, involves a program in Missouri where the state reimburses nonprofits for purchasing and installing rubber playground surfaces made from recycled tires. Trinity Lutheran Church was excluded from the state program because it is a religious organization. The confirmation of Justice Gorsuch virtually eliminated the potential for a tied 4-4 decision in the case. The court agreed to hear the Trinity Lutheran case in January 2016, about a month before Justice Scalia died. It was unusual that oral argument in the case was not heard in the fall of 2016. This has caused speculation that the court anticipates it will be deeply divided on the case and wanted to wait, if possible, to decide the case until the bench was full.

What the Trinity Lutheran case is about:

Missouri implemented a program to encourage and increase safety on playgrounds across the state. There is a fee on the sale of new tires under the program. This fee is used to reimburse nonprofits that resurface their playgrounds using rubber from recycled tires by providing grants to the organizations. The program has the added benefit of reducing the number of old rubber tires in landfills across the state.

Trinity Lutheran Church operates its Child Learning Center as a ministry of the church. The learning center’s playground is comprised of pea gravel, a type of playing surface that can injure children. When Trinity Lutheran applied to participate in the reimbursement program, its application was ranked fifth by Missouri’s Department of Natural Resources. The State of Missouri awarded grants to the top fourteen applicants, but denied Trinity Lutheran’s application for one reason -- Trinity Lutheran is a church. Under the Missouri Constitution, the state may not use money from its treasury to aid any church, sect, or denomination of religion.

The controversy stems from two clauses of the First Amendment. The Free Exercise Clause states that Congress shall make no law “prohibiting the free exercise” of religion. The government must remain neutral and treat religious citizens just as it does any other citizen. Trinity Lutheran argues that denial from Missouri’s program is not neutral. Rather, it discriminates against the organization based on religion and is a violation of the Free Exercise Clause.

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion.” The government can’t use public tax dollars to favor one religion over another. The government also cannot favor religion over irreligion. Missouri argues that funding a new playground surface for a church that teaches students a Christian worldview would violate the Establishment Clause and that not receiving state money does nothing to prevent the church from freely exercising its religious beliefs.

Trinity Lutheran argues that because the funds are only used for resurfacing the playground and not for a religious purpose, Missouri can grant the money without promoting any particular religion. Missouri argues that the act of making sure Trinity Lutheran complies with the entire rules program requires the state to regulate churches. This is the very type of regulation that churches don’t want the government doing. It also argues that allowing Trinity Lutheran to receive the grant would create competition among religious groups to receive state funding.

Why it matters:

The original intent of the Missouri law was to create safer playground surfaces for children. Missouri is going to pay for 14 organizations to receive a softer, rubber surface that won’t cut and scrape kids as badly when they fall while playing. But why does it matter which 14 playgrounds are made of recycled tire rubber and why does the entire country care about children's scraped knees in Missouri?

The effects of the Court’s ruling in this case will be long lasting and could be wide ranging. Trinity Lutheran Church and its allies warn that if SCOTUS rules in favor of Missouri then countless public services offered by religious organizations are in jeopardy. A religiously affiliated battered women’s shelter or food pantry could be denied funds despite all of the social services it offers. Meanwhile, Missouri is not the only state with a constitution that prohibits the use of state funds by religions groups. Missouri argues that a ruling in favor of the church would invalidate similar provisions in 39 of 50 state constitutions. Allowing churches to have access to taxpayer funding for any reason endangers freedom of religion and the separation of church and state.  

Regardless of how the court rules, now that a full nine-member court is deciding the case, legal scholars anticipate the Trinity Lutheran decision will be historic ruling interpreting religious liberty under the First Amendment.

Attorney John Litzler directs the church law division of Christian Unity Ministries in San Antonio. He also assists Texas Baptist churches in understanding various legal issues.     

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