By General Counsel Holly Hollman
From the front row of the lawyers’ section in the courtroom, BJC Executive Director Amanda Tyler and I watched and listened as the U.S. Supreme Court probed the scope and application of a state law separating church and state. By the time oral arguments were heard April 19 in Trinity Lutheran Church of Columbia v. Comer, we had thoroughly considered the case and were eagerly anticipating the justices’ questions.
The parties describe Missouri’s decision not to fund capital improvements for a church playground in starkly different terms. From the state’s perspective, it was simply keeping its hands off religion, following Missouri’s constitution that has banned tax support for churches since 1820. The bright-line rule against state aid to churches keeps the government from having to decide whether any particular part of a church property is sufficiently secular to be funded by the state. From Trinity Lutheran Church’s perspective, however, the state should not worry about funding religion — the church playground is barely part of the church, though it is important to the church’s weekday preschool ministry. Instead, the church argued that its exclusion from a grant program that encourages the recycling of scrap tires for playground resurfacing is discrimination based on religious status, brimming with hostility to religion, and makes kids playing on church property less safe.
To understand what is truly at stake and to avoid the trap of hysteria, it helps to know a little history. Missouri’s constitution, like the constitutions of 38 other states, prohibits state funding of churches. This prohibition, reasonably applied, is a valid and historical way of preventing state-funded religion.
As the BJC’s brief in support of Missouri explains, such prohibitions on government aid to churches are an important part of the hard-won legacy of Baptists and other dissenters who fought against state establishments of religion in the Founding era. Religious dissenters opposed tax support for churches and ministers as an affront to both religious liberty and the voluntary nature of religion. Similar provisions in many state constitutions that prohibit state funding of religious schools serve the same purposes but have a more complicated history, partially tied to anti-immigrant sentiments. Voucher proponents that emphasize this regretful (though hardly uniform) history are at a loss to dismiss bans on government funding of churches and the religious liberty concerns that pre-date and have no relation to anti-Catholic bias. Historically, Baptists fought to ensure the separation embodied in Missouri law, and today we are called to explain that our churches are essential vehicles for religious ministries — playgrounds included.
Given that history, it is hard to imagine the Free Exercise Clause being interpreted to require direct government aid for church property improvements. But that’s what Trinity Lutheran Church is asking the Court to do. Churches, of course, have broad free exercise and autonomy rights to use their property for activities they deem religious or not. The use of church property as an essential exercise of religion is also recognized by the federal Religious Land Use and Institutionalized Persons Act, which applies beyond the church sanctuary, as well as the federal Church Arson Prevention Act, which was applicable in a 2011 case when a mosque’s playground was burned. The attack on the playground was seen as an attack on the house of worship.
Perhaps, instead of trying to determine what parts of a church are religious and what parts are secular, the Court will craft a public safety exception to Missouri’s no-aid rule. The church claims that the state grant to the church does not aid religion but only makes kids safer. It is true that the government is generally charged with providing for the health, welfare and safety of its citizens. If the Missouri constitution can be used to deny churches access to resurfacing grants, the church and some of its supporters argue with alarm that the state may deny churches access to fire and safety protection. That red herring was easily dismissed at oral argument. Neither the U.S. Constitution’s Establishment Clause nor Missouri’s more explicit provisions prohibiting state aid to churches threaten such essential services.
In fact, in the first case that applied the federal Establishment Clause to a state program, Everson v. Board of Education (1947), the Supreme Court recognized both the importance of separation and its limits. In Everson, the Court articulated a vision of the Establishment Clause that avoids state funding of religion, while still upholding a New Jersey law that reimbursed bus fare for students in private schools. It also dismissed the idea that a high wall of separation would prevent fire and safety protection.
Still, Justice Samuel Alito questioned the state’s attorney with seeming incredulity about whether the Missouri Constitution mandated the exclusion of churches from a number of grant programs aimed at improving the safety of buildings. Of course, in this case there is no evidence that Missouri has a playground safety crisis, nor even that Trinity Lutheran Church’s playground was previously dangerous to preschoolers. It is more than a stretch to assume that this limited discretionary grant program must be treated the same as general government programs that provide essential services or that respond to specific threats to churches.
As Justice Elena Kagan noted as she pressed the church’s attorney, finding the precise church/state divide is a hard issue. After commenting that there was “something attractive about having some play in the joints where States can go their own way and make their own choices,” she asked, “And why shouldn’t this be one of those cases?” That’s a good question, and should be a hard one for the Court to answer against Missouri.
Just as we know that states must provide essential government services such as fire and police protection, we also know that churches and other houses of worship are organized for religious purposes and activities, typically and appropriately funded by those that attend them. A win for Missouri in this case does not put church-going Missourians at great risk. Abandoning the state constitution’s prohibition on aid to churches, however, may pose a much greater threat, upending the ability of states to both protect religious liberty and treat churches in distinctively favorable ways.
For more on the case, including a video reflection recorded the day of oral argument, visit BJConline.org/TrinityLutheran.
From the May/June 2017 edition of Report from the Capital. You can also read the digital version of the magazine or view it as a PDF.
