Supreme Court to Decide Whether Taxpayers Must Pay for Church Playground Upgrade

The Supreme Court has agreed to decide whether Missouri taxpayers can be compelled to pay for “non-sectarian” church upgrades.

Case: Trinity Lutheran Church v. Pauley  (U.S. Supreme Court docket number 15-577)

By Michael Peabody

Last Friday the U.S. Supreme Court agreed to hear a case involving a church that sued the state of Missouri when the state refused to fund a “non-sectarian” playground surface as part of a larger grant program.

Trinity Lutheran Church in Columbia, Missouri applied for a state grant program that would allow it to replace its pea gravel day-care playground with a bouncy surface made of recycled tires. Of 44 applicants for the program, the state had money to pay for 14 of them.

Even though the church would otherwise qualify for the program, the state’s constitution prohibits such funding and the state refused. The state’s constitution states specifically that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]”[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.” Missouri State Constitution[/pullquote]

The church sued the state and argued that the playground upgrade had nothing to do with religion and would provide a primarily secular benefit for children who attended the church’s daycare and neighborhood children who use the facility after hours.

The Eighth Circuit Court of Appeals affirmed the denial. The attorneys for the church appealed to the Supreme Court, arguing (http://www.supremecourt.gov/qp/15-00577qp.pdf)  that the denial was contrary to the Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004) which they interpret as justifying the exclusion of religion from a neutral aid program where, according to the church’s attorneys, “no valid Establishment Clause concern exists.”  (In Locke, the Court ruled 7-2 found that the state of Washington could use its discretion to refuse to provide funding for theology majors. The Locke Court also found that states have a ‘historic and substantial interest’ in excluding religious activity from public funding.)

The question before the Court raised by Trinity’s attorneys is:

“Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Not surprisingly, the question is loaded since whether there is a “valid Establishment Clause” concern is up for debate. If anything, Missouri’s constitution takes the Establishment Clause a step further by clarifying that the “public treasury” will not be used to fund religion. The fact that this language is not present in the Federal constitution should not be seen as proof that such funding is constitutional. Rather, even in states without such constitutional provisions, any governmental funding of religion is prohibited and the institutions that receive such funding need to demonstrate that it is being used in secular ways.

A Short History of the Blaine Amendment

Following the Civil War, the American Protestant majority was becoming increasingly nervous about Catholic immigrants who sent their children to Catholic schools. Since public schools already integrated Protestant teachings into their curriculum, a situation that would not change until the 1950s, there was a fear that tax money would be used to fund Catholic education.

With this issue in mind, in 1875, President Ulysses S. Grant gave a speech for a veterans group that called for a Constitutional amendment that would mandate free public schools and prohibit the use of tax money for sectarian schools, a common practice at the time. Grant said that this free public education should be “unmixed with sectarian, pagan, or atheistical dogmas.”

In response to the suggestion, Senator James Blaine proposed the following amendment to the U.S. Constitution which would strengthen the Establishment Clause by prohibiting government money from being used to fund sectarian institutions.

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Although the Blaine Amendment passed the House of Representatives by a vote of 180 to 7, it failed to reach the necessary two-thirds vote in the Senate by four votes and it was not added to the U.S.  Constitution.

With the failure of the Amendment in the U.S. Senate, proponents turned their attention to implementing state-level “Blaine Amendments.” As the nation was still growing, Congress made state-level passage of Blaine Amendments an explicit condition of entering the Union for several states and a number of other states willingly adopted the amendment as part of their constitutions. Today Blaine Amendments, or “No-Aid provisions” remain in force in 35 states.

[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””]”No-Aid provisions” remain in force in 35 states.[/pullquote]

The Supreme Court and Direct Funding of Sectarian Institutions

As Justice Sandra Day O’Connor, since retired, noted in her concurring opinion in Mitchell v. Helms (2000), the Court recognizes that there “are special dangers associated with direct money grants to [such sectarian] institutions.”

The Court in Mitchell also noted that it was necessary to ban direct financial aid to religious institutions because “there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s ‘religious mission,” and “knowingly or unknowingly, result in religious indoctrination.”

Although the Blaine Amendments have been on the books for more than 140 years, they were dismissed as anachronistic by a plurality in Mitchell, including Rehnquist, Scalia, Thomas, and Kennedy, who found that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This [Blaine Amendment] doctrine, born of bigotry, should be buried now.”

The same justices also wrote that “opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

When the Supreme Court convenes to review the Trinity Lutheran case, Catholic Justices Scalia, Thomas, and Kennedy will still be on the bench. While religion is certainly not determinative of a decision, the composition of the Court is significant in that Republican appointees Justices Alito and Roberts are also Catholic along with Democrat appointee Justice Sotomayor.

While the briefing in this case suggests that the Court will be asked to focus on the legitimacy of the state-level Blaine Amendment rather than whether such funding runs contrary to the Establishment Clause, the result could lead to a scenario where the Courts could compel states to directly fund “non-sectarian portions” churches and churches, thus undermining the Establishment Clause.

Houses of Worship Could Engage in a Feeding Frenzy for State Funds

According to Gregory Hamilton, president of the Northwest Religious Liberty Association, there is reason for concern that a decision in favor of Trinity Lutheran Church could “represent the first time in U.S. Constitutional History, that I am aware of, that state monies would flow directly to a church, even if the playground resurfacing and construction was for non-sectarian purposes,” says Hamilton. “Second, it would invariably create a competition frenzy among churches and denominations for similar project funds. This would go against the original intent of the Establishment Clause of the First Amendment whose foundation is based on the debates between James Madison and Thomas Jefferson on one side for disestablishment of religion as part of a religious freedom statute in Virginia and Patrick Henry on the other side who favored direct church funding.”

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]”[I]t would invariably create a competition frenzy among churches and denominations for similar project funds.”[/pullquote]

If the Court were to rule in favor of Trinity Lutheran Church, Hamilton warns, “it would be redefining ‘government neutrality’ in ways that change the balance between church and state as we have known it, and empower churches to make greater demands on the state to build up their so-called ‘non-sectarian’ activities.”

Indirect Benefit for Religious Ministry

Even though states have not been able to fund churches directly up until now, this could change, and bring with it an entirely new understanding of what the Establishment Clause means, and it may not be long before churches, synagogues, mosques and other houses of worship compete with secular organization to demand that state taxpayers fund the “secular” portions of their infrastructure. The religious organizations could then use the money they would have spent for the secular infrastructure to advance their religious objectives.

Churches Would Have to Distinguish Between Secular and Religious Use

In the event that churches were able to receive direct funding for “non-sectarian” infrastructure, they would need to ensure that the use was not religious. This creates a number of problems for religious institutions that pride themselves on representing their faith in all that they do. Even if state regulators do not step in and police each activity to ensure that children are not led in Sunday School songs on their new bouncy playground, churches that wish to instill ethical values of truthfulness and fair dealing would face significant challenges when they decide whether to tell children that certain areas are off limits for directed religious activity so long as the infrastructure is in place.

[pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]Churches that wish to be above-board will have to cordon off those secular areas from religious areas, an untenable situation at worst, and a Faustian bargain at best.[/pullquote]

Churches that wish to be above-board will have to cordon off those secular areas from religious areas, an untenable situation at worst, and a Faustian bargain at best. In the case of Trinity, children will know instinctively that something is wrong if churches fail to abide by the non-sectarian purposes, and the church may soon find that they sold off an important part of their property for the price of a bouncy play surface.  Better to get the neighbors together and ask for them to pitch in to buy a few containers of recycled rubber playground mulch. Amazon.com will sell you 75 cubic feet for $749.00 with free shipping to Missouri. That’s enough to cover 300 square feet at 3 inches deep, or 150 square feet at 1.5 inches deep.

A Larger Problem

The fact that religious institutions are now clamoring for state funds under a secular pretext is perhaps indicative of a larger problem that churches themselves must seek to address as they are unable to fund their own activities.

It does not go unnoticed that many who demand this funding at the point of litigation simultaneously argue for “small government” and decreased regulation, an oxymoronic situation whenever government money is involved. Also, many of these advocates have also argued for “states’ rights” when it comes to same-sex marriage laws, yet are at this stage asking the Supreme Court to overturn a state constitutional provision. It is cause for concern whenever arguments become a matter of convenience rather than principle. Litigating along such inconsistent lines of logic is fundamentally destructive.

Given the fact that until now the Court has not permitted government to directly fund any church for any reason, if the church wins the funding from the state at the point of litigation, this will represent a seismic shift in the balance of power between church and state and directly undermine the Establishment Clause.

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