Case tests scope of state-level church aid bans

A church-state conflict with roots stretching back to anti-Catholic sentiment in late 19th-century America has the potential to become one of the most important cases facing the U.S. Supreme Court in the term that opens Oct. 3.

At first glance, the immediate issue may appear simple to the point of triviality: Can Missouri deny money from a public fund for upgrading playground safety to one particular playground only because it is owned and operated by a church?

But the implications of this dispute extend well beyond its immediate facts, ultimately reaching the constitutional pros and cons of government aid to a wide range of religiously sponsored institutions and programs, not just in Missouri but in many other places.

The case is Trinity Lutheran Church of Columbia v. Pauley. Sara P. Pauley, director of the Missouri Department of Natural Resources, administers the state program involved.

Excluded by being church

In presenting the church’s argument to the Supreme Court, attorneys from the Alliance Defending Freedom, a public interest law firm, say excluding the church from the playground safety program is “an unvarnished status-based discrimination.” As such, they contend, it violates the free exercise clause of the First Amendment and the equal protection clause of the 14th Amendment.

The dispute began in 2012, when Trinity Lutheran Church sought reimbursement from a state program providing funds for the installation of rubberized playground surfaces as a safety measure.

Trinity Lutheran operates a day care program and preschool. Its playground is used not just by those children but by neighborhood children generally, regardless of religion.

Of the 44 applications that the Department of Natural Resources received for assistance from the playground safety program, it said yes to 14. On the basis of quality, Trinity Lutheran’s application ranked fifth on the list of those approved. But the department nevertheless turned down Trinity Lutheran, in the words of the church’s appeal to the Supreme Court, “solely because of who it is — a church.”

The department acted in light of a section of the state constitution forbidding use of state funds “in aid of any church.” Thirty-seven other states have similar provisions in their constitutions. Collectively known as Blaine amendments, these provisions first saw the light of day in 1875.

A history of bias

That was a time when, due to immigration and natural growth, the Catholic population was expanding rapidly in the United States, with a corresponding increase in Catholic political power in urban centers. The growth and expansion of Catholic parochial schools accompanied this population growth, and the spread of Catholic schools touched off repeated controversies over their funding.

Speaking to a veterans’ meeting in that year, President Ulysses S. Grant took a hard-line stand. Not only was there need for “good common school education,” he said, but the U.S. Constitution should be amended to ban the use of public funds for “sectarian schools” sponsored by churches.

Sectarian schools was widely understood to mean Catholic parochial schools, while “common schools” — what are called public schools today — were, says historian James Hitchcock, “objectionable to Catholics because they were essentially Protestant.”

Following Grant’s speech, the Speaker of the House of Representatives, James G. Blaine of Maine, proposed a constitutional amendment along the lines that Grant had sketched. Blaine later served as senator and as secretary of state, and was the Republican presidential candidate in 1884.

Blaine’s amendment passed in the House of Representatives by a vote of 187-7 and failed by just four votes to receive the necessary two-thirds vote in the Senate. The idea of such amendments then spread to the states, with Missouri among those adopting a version of the proposal.

In recent years, voters in several states have rejected attempts to repeal these provisions. But in 1974, Louisiana voters approved a new state constitution, repealing the Blaine amendment that had been part of that state’s constitution since 1921.

How broad a ban?

In Trinity Lutheran Church v. Pauley, the church lost in federal district court and in the Eighth Circuit U.S. Court of Appeals. A three-judge panel of the appeals court handed down a 2-1 ruling against the church in May 2015 and three months later refused to grant a rehearing by the full court.

Trinity Lutheran then appealed to the Supreme Court, which agreed to hear the case last January. Oral argument is expected to take place in November.

From one perspective, the dispute is a classic conflict between narrow and broad understandings of religious liberty, often summed up as freedom of worship vs. freedom of religion.

Missouri maintains it is not violating religious free exercise rights since, by merely refusing to fund upgrading the safety of a church-owned playground, it does nothing to prevent adherents of the church from worshipping as they please.

But Trinity Lutheran argues that excluding it from the safety program is “an overbroad and unconstitutional restriction on the faithful’s ability to participate on equal terms in public life.” Furthermore, it points out, the money is not being sought for a religious purpose but a thoroughly secular one: “A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane.”

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No less significant from a constitutional perspective is the fact that underlying this dispute are differing interpretations of a 2004 Supreme Court decision in a case called Locke v. Davey. There the court upheld the exclusion of ministerial students pursuing theological studies from a Washington state scholarship program.

But that decision, Trinity Lutheran maintains, was based on “a unique historical concern — state funding for the religious training of clergy” and nothing like that is at stake in a playground safety program benefiting young children of many religious denominations or none. Some lower courts have interpreted Locke v. Davey along the lines argued by the church while others have seen it as a broader ban on state aid.

Due to the death last February of Justice Antonin Scalia and the impasse between the Senate and the White House over choosing a successor, the Supreme Court currently is operating with eight justices instead of nine. As a result, Trinity Lutheran v. Pauley raises the question of what happens if the court splits 4-4.

As a matter of fact, the justices would then have several options, including rehearing the case once the court is at full strength again. But if they issue a 4-4 split decision, its effect will be to uphold the Eighth Circuit Court of Apppeals’ ruling against the church but without setting any constitutional precedent.

Russell Shaw is an OSV contributing editor.