A Wall Too High

The barrier separating state and religion in the United States, that has been constructed layer by layer over centuries by the Supreme Court, may have reached a limit of sorts, as a case currently before the High Court seems poised to dismantle an entire row of bricks.

The case, Trinity Lutheran Church v. Comer, concerns a Missouri grant program for nonprofits to resurface playgrounds with material made from shredded recycled tires. It is funded by a tax on the sale of new tires.

The state awarded later-applying grant-seekers in 2012, but denied the Trinity Lutheran school’s application because of its church affiliation. The state cited a clause in Missouri’s constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion…”

Such clauses in state constitutions are known as “Blaine Amendments,” a reference to James Blaine, a former Republican speaker of the House of Representatives from Maine who, in 1875, proposed a U.S. Constitutional amendment to keep states from channeling funds to private religious schools. His goal was to prevent aid to Catholic schools. His amendment failed, but around the turn of the 20th century, fueled by anti-Catholic sentiment, “Blaine Amendments” to state constitutions were passed in 39 states.

Blaine Amendments “were born of bigotry against Catholics,” Hannah Smith, senior counsel at the Becket Fund, observed in a recent interview. “Now, they’re used to keep any religious organization from getting funds.”

The church in the current case sued but lost in lower federal courts, which relied on a 2003 Supreme Court case, Locke vs. Davey, in which the justices ruled that Washington state could bar people studying for the ministry from a state-funded college scholarship program because of the state constitution’s Blaine Clause.

Before the High Court now, though, is the question of whether excluding churches from otherwise neutral state aid programs violates the federal Constitution’s protections guaranteeing free exercise of religion and equal protection under the law. In Locke vs. Davey, the funding would arguably have been a direct payment for a religious education. Improving playground safety isn’t a religious use by any measure.

All children, after all, are precious, even those attending religious schools, and removing such schools from programs aimed at helping ensure childrens’ safety, is simply a church-state wall too high.

Trinity Lutheran’s lawyers raised concern that the Missouri Blaine Amendment could lead the state to maintain that it shouldn’t have to provide fire or police protection to faith groups.

Justice Elena Kagan contended that the exclusion of the church preschool from the playground program was “a clear burden on a constitutional right.”

Justice Samuel A. Alito Jr. asked about specialized programs to protect churches and synagogues from terrorist attacks and hate crimes. A lawyer for Missouri contended that the state constitution would indeed bar using state money for them.

And newly-minted Justice Neil M. Gorsuch, hearing his first case on the Court, called the program, in effect, “discrimination on the basis of status of religion.”

Justice Sonia Sotomayor seemed to be in the minority, characterizing the state as “just saying we don’t want to be involved with the church.”

Ironically, Missouri recently changed its public grant policy, and now considers religious institutions eligible for programs like the scrap tire grant.

The case remains before the Supreme Court all the same, and its decision, expected by the end of June, may have broad implications. If, as the justices’ comments at oral arguments seem to indicate, the Court rules in Trinity Lutheran’s favor, the justices are expected to send a related case, Douglas County School District v. Taxpayers, back to the Colorado Supreme Court. That case, which revolves around Colorado’s Blaine Amendment, involves a school voucher program, and requires judges to determine whether state public funds can legally be provided to religious schools.

In other words, a ruling for Trinity could pave the way toward more direct rulings on the legality of Blaine Amendments.

The Supreme Court originally agreed to hear the current case in January 2016, not long before the death of Justice Antonin Scalia. Apparently fearing a deadlock, it waited more than a year to schedule arguments. It turns out, though, if the exchanges at oral arguments accurately herald what the Court will eventually decide, that a majority of the justices would have ruled in the church’s favor even before Justice Gorsuch’s arrival on the bench.

That is a heartening thought, and we hope it bodes well for reason and reasonability when courts consider any future construction of the church-state wall.