What could prove to be a landmark U.S. Supreme Court case over whether state money can be used to aid religious institutions began with recycled tires and a children’s playground in Missouri.
A grant program through the Missouri Department of Natural Resources repurposes tires and uses the scrap rubber for playgrounds. Funded through a surcharge on new tires, it diverts rubber that would otherwise be discarded in a landfill and allows recipients to install a bouncier surface beneath children’s playscapes.
Trinity Lutheran Church in Columbia, Mo. applied for the grant to resurface its preschool’s playground, but was denied by state officials who pointed to an 1875 constitutional amendment that restricts public money from being used “in aid of any church.”
The church sued and lost on appeal, but the Supreme Court has agreed to hear the case, Trinity Lutheran Church v. Pauley, this year.
The court’s eventual decision could call into question the constitutionality of “Blaine Amendments” in 38 states across the country, which religious organizations have long deemed unfair but proponents say are necessary for the separation of church and state.
Attorneys for Trinity Lutheran contend that the program is “neutral” — it doesn’t promote religion, but makes a playground used by children throughout the community safer.
The church was discriminated against because of its religious status, said Erik Stanley, senior counsel for the conservative Alliance Defending Freedom, which is representing the church.
“The upshot of what the lower court did treats churches and religious organizations like second-class citizens,” Stanley said. “Missouri is interpreting its constitution in an extreme manner.”
But Blaine defenders say that’s a slippery slope.
“People who say, ‘Well, this is a general program and churches should get a slice of it like anyone else’ are missing the basic principle,” said Richard Katskee, the legal director for Americans United for Separation of Church and State.
He raises a question of fairness.
“It’s a competitive grant program, with winners and losers. … There’s a government official who decides who gets the money. That can be done because that’s the favorite faith of that government official,” Katskee said. “Even if it’s done on neutral criteria, those whose houses of worship don’t get the money are going to feel rightly it’s favoring other faiths.
“The states are trying to protect religious freedom by making sure government and religion don’t get mixed up with each other,” he added. “Money going to churches corrupts churches. The churches start pandering to the people giving out the money.”
In 1875, Maine Sen. James G. Blaine proposed an amendment to the Constitution that would prohibit public money from going to “sectarian” schools.
At the time, “sectarian” was code for “Catholic.”
Religious scholars attribute the widespread adoption of Blaine Amendments to increased Catholic immigration — and the opening of more Catholic schools — in the 1800s, which led to a fear that the government would begin to fund Catholic education.
Blaine’s proposal failed at the federal level, but it did inspire states to adopt their own amendments, bearing his name.
Some Blaine Amendments are stricter than others, merely barring state money from going toward religious education. Missouri’s goes further:
“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”
The wording is stronger than the Establishment Clause of the U.S. Constitution, which doesn’t delve into funding and instead mandates that Congress cannot enact an establishment of religion.
But Trinity Lutheran Church is asking the country’s highest court to consider if that provision violates a different aspect of the Constitution — its members’ freedom to practice their religion.
The church’s attorneys also question whether states will interpret Blaine Amendments to withhold more vital services from religious institutions.
“I think the part of it is, the danger of this type of case, churches could be denied all types of participation in government programs,” Stanley said. “One day, the city could say, we’re not going to repair the sidewalks and streets (in front of a church).”
A brief filed by former Missouri Attorney General Chris Koster, a Democrat, challenges the argument that the state could cite Blaine and refuse to provide police, fire and ambulance protections to churches.
“Such services truly are generally available benefits — when someone in need calls for help, the police respond without considering whether the caller has submitted a sufficiently competitive proposal,” Koster wrote. “In short, withholding police or fire-protection services from a church would impose an incredible hardship on its members. Withholding funding for a new playground surface does not.”
Koster’s Republican successor, newly minted Missouri Attorney General Josh Hawley, has said Koster was wrong to defend the case because Blaine Amendments punish people of faith.
Hawley has recused himself from the case, citing private practice work with the plaintiffs. First Assistant Attorney General John Sauer will be serving as active attorney general for the purpose of this litigation, according to a spokesman for Hawley. The court has not yet set a date for oral arguments.
“I can tell you this is a vital case for all people of faith in Missouri,” Hawley said during the campaign. “Blaine Amendments cannot be allowed to trump the First Amendment.”
State lawmakers have attempted to introduce constitutional amendments that would repeal Missouri’s Blaine provision, but they haven’t been successful.
The issue could resurface this legislative session, as lawmakers and Gov. Eric Greitens have expressed a willingness to consider school choice proposals, such as vouchers for students to attend private school.
Since the majority of private schools are religiously affiliated, any voucher or state-funded education savings account program passed by the Legislature would likely be tested in court. Vouchers have survived in some Blaine states, but have been ruled unconstitutional in others.
Even supporters of a Blaine repeal acknowledge that until the Supreme Court weighs in, it’s a tough sell.
“It would take a lot of education of the public,” said Mike Hoey, executive director of the Missouri Catholic Conference. “If you put something like that forward, some folks immediately begin to say we’re going to have vouchers.”
Still, Hoey said, the landscape has changed immensely since Blaine Amendments first began to pass, which could mean it’s time to revisit the issue.
“We have virtual schools now. Schools without walls,” Hoey said. “We’re entering a whole new world in education that wasn’t thought about when Blaine was passed.”