- The Washington Times - Wednesday, January 20, 2016

A playground spat over surfacing made out of scrap tires is looming as a pivotal church-state separation case, one that religious freedom advocates say could provide relief from what they see as government hostility toward faith.

The U.S. Supreme Court teed up the battle when it agreed last week to consider Trinity Lutheran Church v. Pauley, a 2013 lawsuit filed by the church after the state of Missouri rejected its application for a grant to replace its preschool’s playground pebbles with repurposed rubber from old tires.

State officials said the preschool was ineligible because it was run by a church, citing an 1875 Missouri constitutional amendment — known as the Blaine Amendment — prohibiting public funds from being used “in aid of any church.”

Three dozen states have similar amendments, but they “shouldn’t be applied in a way that would treat churches and religious organizations worse than everybody else simply because they’re a church,” said Erik Stanley, Alliance Defending Freedom senior counsel.

The 8th Circuit Court of Appeals upheld last year the trial court’s ruling against Trinity Lutheran, but if that decision is allowed to stand, “it could spell disaster for all kinds of participation by churches and other religious groups in what are evenhanded government programs,” he said.

“Taken to the extreme, it could even mean that a state could justify not providing fire protection to a church,” Mr. Stanley said. “They could say, ‘That’s aid to a church. And so we’re not going to do that under our state constitutional provision.’”

The church said in its appeal to the high court that though the preschool itself may be part of its ministry, the grant — and the playground — were meant for purely secular purposes.

“Seeking to protect children from harm while they play tag and go down the slide is about as far from an ‘essentially religious endeavor’ as one can get,” the church argued.

That the Supreme Court has agreed to hear the case has groups that promote a strict separation of church and state on high alert. The fear is that the court could loosen a 2004 decision that held that Washington state could exclude a college student seeking a divinity degree from its tuition-aid program.

“We were surprised that the Supreme Court took this case, and we are definitely concerned that the Supreme Court has taken this case,” said Alex Luchenitser, associate legal director for Americans United for Separation of Church and State. “It is possible that this case could erode state constitutional restrictions on the public funding of religious institutions.”

The case is also being watched by constitutional scholars.

“Regardless of outcome, the case will be one for the history books,” said Noah Feldman, Harvard professor of constitutional and international law, in a column for Bloomberg View.

When states began passing their own Blaine amendments in the late 1800s, a key issue was whether Catholic schools could receive public funds. More recently, courts have wrestled with whether the amendments forbid state tax dollars from being used for everything from church-run halfway houses to soup kitchens.

Blaine amendments

It’s possible that the high court could examine the constitutionality of Blaine amendments, which go beyond the U.S. Constitution’s prohibition against the establishment of a state religion. Critics contend the provisions, named after James Blaine, a House speaker and senator from Maine who ran unsuccessfully for president in 1884, are rooted in anti-Catholic animus.

Eric Rassbach, deputy general counsel for The Becket Fund for Religious Liberty, said, “I would be surprised if the court simply passes the history by.”

“It’s a bit like if they were adjudicating a Jim Crow statute and they didn’t mention anything about Jim Crow,” Mr. Rassbach said. “This is Jim Crow for Catholics. You don’t have to look too deeply into the second half of the century in the United States to see where these provisions were coming from. ‘Rum, Romanism and rebellion’ — that’s the kind of stuff that was going on during that time period when these state Blaine amendments were enacted.”

But Mr. Luchenitser disputes that interpretation of the amendments’ history, arguing that state legislators had plenty of other reasons for adding the provisions to their constitutions, including a healthy regard for the separation of church and state.

“That’s what the groups like the Alliance Defending Freedom and the Becket Fund charge, but that’s a very questionable reading of history,” he said. “It’s true that there were some people who made anti-Catholic statements, but what was going on in the 19th century was the Catholic Church was the leading group that was seeking funding for private religious schools.”

Mr. Luchenitser added that “there’s a lot of debate and controversy about this.”

Supporters of Trinity Lutheran’s effort to win state dollars for the playground say they don’t expect the court to go so far as to strike down the Blaine amendments, but they want to see the court give churches more leeway in accessing public funds, especially when the purpose is clearly religion-neutral.

“A good outcome would be if the Supreme Court said, ‘No, you cannot enforce these Blaine amendments to exclude religious institutions from equally distributed grant programs or contracting programs or what have you just because they’re religious. That’s an exclusion that just doesn’t make sense,’” said Mr. Rassbach.

Mr. Stanley, who represents Trinity Lutheran, said his client’s appeal to the Supreme Court is “much more narrow and focused.”

“The best outcome for Trinity Lutheran would be to apply these amendments, even if they remain, in an evenhanded and neutral fashion that treats religious groups on the same terms as everyone else,” Mr. Stanley said.

Ten states filed a brief in support of Trinity Lutheran’s request for a high court hearing, saying that previous judicial rulings “arguably push ‘no aid’ into the realm of discrimination against religion.”

In his brief, Missouri Attorney General Chris Koster, a Democrat, argued that the question is not “whether a state can exclude churches and other religious institutions from a program that otherwise provides benefits to everyone.”

“Rather, it is whether states are required by the U.S. Constitution to violate their own constitutions and choose a church to receive a grant when that means turning down nonchurch applicants,” he said.

Mr. Luchenitser said he could foresee a ruling in which the court identifies “circumstances where the funding does not actually support a religious facility or a religious activity or religious teachings,” and that “only in those circumstances the states cannot treat religious and nonreligious institutions differently in deciding who can get public funds.”

“We wouldn’t support such a ruling; we’d be disappointed,” he said. “But it would be better than a more expansive ruling that erodes the state constitutional provisions to a greater extent.”

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