No Swing Vote on Playground Case

Posted on Posted in Christianity, culture, law, politics

Trinity Lutheran doesn't want to be punished for its faith.

originally published on Washington Examiner

Two months ago, the U.S. Supreme Court took something of a trip to a small playground in Missouri. And on Monday, the court took us all on a journey back to the origins and intent of the First Amendment.

The court's 7-2 opinion in Trinity Lutheran Church v. Comer is significant in that it clarifies that government officials mustn't play around with the basic freedoms of religious organizations. Specifically, the court held 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…, and cannot stand."

For those unfamiliar with the "Playground Case," I explained the background in a previous post for The Examiner:

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.

The state excluded Trinity Lutheran from the program, despite its having the fifth-best application (out of 44) when it applied in 2012, even though 14 grants were awarded. No dispute existed on the reason for the denial: A church operates The Learning Center. It fell upon the Supreme Court to determine whether this exclusion violated the Free Exercise and Equal Protection Clauses of the First Amendment.

The court's answer was an emphatic "yes."The decisiveness of the court's decision is notable, both in its contrast to early predictions, but also — and more importantly — in its unabashed endorsement of certain fundamental freedoms acknowledged in the Bill of Rights. Prior to oral arguments, pundits anticipated a divided court. (Yale Law School's Linda Greenhouse predicted "near-certain deadlock"). This shifted dramatically to forecasts of a 7-2 victory for Trinity Lutheran following oral arguments, during which Justices Kennedy, Breyer, and Kagan all expressed various degrees of concern about Missouri's implementation of its program. During the state's turn at the lectern, Justice Kagan eloquently summarized the problem with Missouri's position:

"It's a burden on [a] constitutional right . . . because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit."

The opinion, authored by Chief Justice Roberts, reflects this sentiment:

"The Department's policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."

Americans should celebrate the court's ruling, not because it breaks new ground, but because it preserves a balance between the Free Exercise and Establishment clauses of the First Amendment.

Had the court ruled against Trinity Lutheran, it may have set a precedent that the Establishment Clause allowed (or even mandated) hostility rather than neutrality toward religious groups and individuals. Under such an unbounded view of the Establishment Clause, even "neutrally available public benefits" such as road and walkway repair or police and fire services could be denied to religious organizations.

Trinity Lutheran wasn't asking for access to special benefits. Rather, Trinity Lutheran was asking not to be excluded.

Punishing organizations — and individuals — for being religious is not just counter to the enumerated protections of the Constitution and Bill of Rights; it is also counterproductive. Religious organizations provide immense value to the community at large, and this value stretches far beyond the playground at Trinity Lutheran's preschool or the state of Missouri. A recent research study valued the contribution of faith-based institutions at $1.2 trillion dollars. As my colleague Alison Howard noted, "If $1.2 trillion was put in terms of GDP, it would make U.S. religion the 15th largest national economy in the world."

Trinity Lutheran wasn't asking for access to special benefits. Rather, Trinity Lutheran was asking not to be excluded. It is asking that — when neutrally available public benefits are offered — religion not be a disqualifying characteristic. Simply, it doesn't want to be punished for its faith.

The Supreme Court's ruling is an important step toward ensuring freedom in the present. The continued commitment of government officials, legislators, judges, business owners, and citizens to constitutional principles is necessary to ensure freedom's future.

Despite the title of the old bestseller, I don't know if it's true that we learn everything we need to know in kindergarten. But with regard to religious freedom, we certainly have learned a great deal from a preschool playground.


Trinity Lutheran wasn't asking for access to special benefits.
Rather, Trinity Lutheran was asking not to be excluded.