Why a Church Playground Matters for Religious Liberty

The Story: In a key victory for religious liberty, the Supreme Court ruled yesterday the state of Missouri violated the Free Exercise Clause of the U.S. Constitution when it excluded a church from a general program to purchase recycled tires and resurface its playground because it was a religious institution.

The Background: The case, Trinity Lutheran Church of Columbia v. Comer, involved a religious preschool that was rejected from a state program that provides reimbursement grants to purchase rubberized surface material (i.e., tire scraps) for children’s playgrounds. The preschool was ultimately denied the grant for its playground solely because the playground belongs to a religious organization. 

Trinity Lutheran Church in Columbia, Missouri, applied for the state’s Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours. The Scrap Tire Grant Program is otherwise neutrally available to a variety of nonprofits, and Trinity’s application was ranked fifth out of 44 applications (in total, 14 grants were awarded).

Although the grant was for a secular use (i.e., making a playground safer), the state of Missouri halted the application process and denied Trinity’s attempt to participate in the program solely because Trinity is a church. The state based this exclusion from the program on Article I, § 7, of the Missouri Constitution, which states, “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

The Court ruled 7-2 in favor of Trinity Lutheran. Justice Roberts Kennedy, Alito, and Kagan joined the majority opinion in full. Justices Thomas and Gorsuch joined but disagreed with footnote #3, which attempts to limit the scope of the ruling: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

Justice Thomas wrote a concurring opinion that was joined by Justice Gorsuch, and Gorsuch wrote a concurring opinion that was joined by Thomas. Justice Bryer also filed a concurring opinion. Justice Sotomayor issued a dissenting opinion that was joined by Justice Ginsburg. In their dissent, these justices claim that the decision in favor of Trinity Lutheran hinders the “separation of church and state”:

“To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

The Court’s majority ruled that the policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status. The policy, says the majority opinion, expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.

The ruling notes that the Court has “repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.”

The conclusion is that the “exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Why It Matters: The issue of whether a church playground can qualify for states grant to purchase rubberized surface material seems rather trivial. So why is the decision considered a significant victory for religious liberty? Here are three reasons why this ruling matters:

1. It upholds the First Amendment understanding of religious liberty — “The case matters because the Court here recognizes the difference between a government establishing a religion and a government choosing not to penalize a religion,” says Russell Moore, president of the Ethics and Religious Liberty Commission and a TGC Council member. This case is not about a state establishing a religion, adds Moore, 

Missouri wasn’t contemplating privileging Lutherans for this program, with a consubstantiation clause. Rather, the state offered a neutral program for groups—public or private—that cared for children and owned a playground. The law shut out Trinity Lutheran not because they didn’t meet the criteria for the program but simply because they are religious.

2. It’s a win for equal participation of religion — As law professor Thomas Berg explains, this is the “first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding.” Berg notes that the Court has now rejected the previously held claim that there was no burden on religion from denial of government funding.

3. It requires the state to treat religious people fairly — At its core, the Trinity Lutheran playground case strikes at the heart of American jurisprudence, said Alliance Defending Freedom, the organization that defended the case before the Supreme Court. The underling questions were: What is fair play in a pluralistic society? Can a state prohibit police from responding to a burglary at a Catholic school? Can a city stop the fire department from putting out a fire at a church?

In their decision on the Trinity Lutheran case the Court answered these questions, ruling that the government can’t discriminate against religious organizations and exclude them from receiving a generally available public benefit simply because they are religious.

“The Court’s decision is good for kids and good for religious liberty,” says Hannah Smith, senior counsel at Becket Law, a non-profit religious liberty law firm that filed a friend-of-the-court brief on the school’s behalf. “Trinity Lutheran was simply asking that the government play fair, treat churches equally, and help the preschool make its playground safer for children. Today’s decision does just that.”

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