The Supreme Court Goes to the Playground

Posted on Posted in Christianity, culture, law, politics

When it comes to playgrounds and religion, the government needs to play fair.

originally published on Washington Examiner

On April 19, this nation's most respected legal minds will focus their collective energy on a playground in Missouri. The outcome of the case — Trinity Lutheran Church v. Pauley — could determine whether the government can exclude religious nonprofits from public benefits solely because they are religious, which is why scholars such as Harvard Law School professor Noah Feldman are calling the case "one for the history books."

Thus, while the subject matter may seem "playful" for a case before the United States Supreme Court, the legal implications are anything but.

The facts are straightforward. Trinity Lutheran Church operates a preschool called The Learning Center, which has a playground on site for use by students and the community at large. Trinity applied for a state program instituted to make playgrounds safer by reimbursing grant recipients for rubberized surface material they purchase for the playgrounds. The program, known as the Missouri Scrap Tire Grant Program, also benefits the environment because the surface material is made from recycled tires, thereby reducing the number of tires in landfills. Appropriately, the program is funded by a tax on all tire purchases, ensuring that the community pays and the community benefits.

Simple ... yes. A win-win by all appearances. But when Trinity submitted its application, the preschool director soon found herself on a not-so-merry-go-round.

A Spiraling Slide from the Top to the Bottom

There were 44 applications in 2012, the year that Trinity applied. Applications are evaluated based on a number of criteria, including product description, the percentage of low-income families benefited, and whether the school provides a detailed plan for installation of the surface material. Trinity's application was ranked fifth among all applications, and 14 grants were awarded. Even preschool students could do the math here… the preschool would receive a grant.

But it didn't. Because The Learning Center is operated by a church. And for that reason alone, the safety of children who attend The Learning Center was deemed less important than the safety of children on other playgrounds.

Trinity filed suit, seeking to protect the safety of its students — as well as the community members who use the playground after hours and on weekends — alleging violations of the Free Exercise and Equal Protection Clauses of the First and Fourteenth Amendments to the United States Constitution, among others. The District Court for the Western District of Missouri dismissed Trinity's case, and a divided panel of the Eight Circuit Court of Appeals affirmed.

Where the Rubber Meets the Caseload

Missouri is teeter tottering off the edge into heavy-handed hostility toward religion and religious entities.


The state argues its action was compelled by Missouri's constitutional prohibition on providing direct or indirect aid to religion. Specifically, Article I, § 7, of the Missouri 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 ... " A previous U.S. Supreme Court decision, Locke v. Davey, is of the upmost importance in resolving whether the state's actions were justified.

In Locke, decided in 2004, the Supreme Court held that the State of Washington could deny scholarships to students who were pursuing a devotional theology degree. The Supreme Court cited the "play in the joints," which is the area between where the Establishment Clause ends and the Free Exercise Clause begins, and found that the state need not fund the devotional training of clergy, an "essentially religious endeavor."

In ruling against Trinity, the Eighth Circuit relied heavily on an exceedingly broad view of the holding in Locke, interpreting it to justify the exclusion of religion from a neutral aid program, even where no valid Establishment Clause concern exists, let alone a "religious endeavor." Its ruling set the stage for the Supreme Court to resolve a circuit split among the First and (now) Eighth Circuits on one hand, and the Seventh and Tenth Circuits on the other. And so the Supreme Court is tasked with determining whether the reasoning in Locke stretches from the inculcation of theological principles to the installation of rubberized materials.

It doesn't.

This is not an issue of providing aid to religion, direct or otherwise. The benefit sought is a secular one; it deals not with matters of the soul but of the sole. Moreover, there was no possibility of The Learning Center holding out its hand for money from the state and then discretely depositing those funds in Trinity Lutheran Church's collection plate. The state program offers a reimbursement grant, not a bag of money for the preschool to spend as it wills. Recipient organizations must install the playground surface first, prior to submitting receipts to the state for reimbursement of part of those costs. Trinity would not be receiving money to offer the gospel road to Jesus; it would be receiving money to offer a rubber road to the balance beam.

Teeter Totter Scales of Justice

By denying The Learning Center access to the Scrap Tire Program, Missouri isn't toeing the line of an even-handed exercise of government neutrality. Rather, it is teeter tottering off the edge into heavy-handed hostility toward religion and religious entities.

Missouri has essentially decreed — and the Eighth Circuit has agreed — that its state establishment clause forbids it from offering generally available public benefits to religious groups. A "generally available public benefit" includes government services like road and walkway repair, or police and fire services. Fixing the sidewalk outside a church is not endorsing or providing aid to religion, it's providing a safe and walkable community for all residents, even the ones that walk to church. And offering an environmentally friendly playground surface that enhances the safety of children is a laudable goal, even if some of the students and community members benefit from that surface while on the property of a religious institution.

Here's hoping the Court brings some balance to the issue and rules that when it comes to playgrounds and religion, the government needs to play fair.


Missouri is teeter tottering off the edge into heavy-handed hostility toward religion and religious entities.