The media has been reporting on the arguments in Trinity Lutheran Church v. Comer, the so-called “playground case.” I’ve had a chance to examine the briefs and arguments and wanted to share these thoughts.
First, a bit of background. The state of Missouri operates a program whereby it reimburses nonprofits when they install rubber playground surfaces made from recycled tires. Money for the state program comes from a fee/tax on new tire sales. Trinity Lutheran Church, according to its petition to the Supreme Court, applied for Missouri’s Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours.
The Church would have gotten the grant but for the following provision in the Missouri Constitution: “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.”
After losing in the lower courts, the Church brought claims under the First Amendment’s Establishment Clause as well as the Fourteenth Amendment’s Equal Protection. The Supreme Court heard arguments in the case this week.
Before getting into the, legal arguments—here’s my common sense constitutional two cents. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nothing dealing with this case can be described as an establishment of religion or a prohibition on Trinity Lutheran in conducting religious services as it sees fit. The highest fundamental law of Missouri prohibits putting public funds in the hands of churches. This is not an unreasonable provision and can be removed from the Missouri Constitution if the people don’t like its operation. Put simply, in a sane world this case really should be a Missouri case in the Missouri courts with the people of Missouri allowed to retain or alter the prohibition on giving public funds to churches. That’s common sense constitutionalism.
But we live in a world where the due process and equal protection clauses of the 14th Amendment (and the doctrine of incorporation) empower the federal judiciary to claim jurisdiction over almost any law that creates categories (which most laws do). A state constitutional matter is turned into a federal one.
So how will this case turn out? Likely it will be an equal protection issue with the Court deciding in favor of the church. Oral arguments indicate that as many as seven of the Justices are leaning toward ruling for the school. The Scrap Tire Grant Program is open to all non-profits and by Missouri enforcing its state constitutional provision, the Justices will likely hold that the state is singling out churches in an improper manner. Religious organizations are per se barred from competing for a government benefit that they would otherwise be entitled to try for. The state, they will say, is not treating all likes alike and it is making this decision based on religion which triggers strict scrutiny of the classification.
The Left seems to be lined up against Trinity Lutheran because it fears ramifications in other areas such as school vouchers. The Left has assumed that the Establishment Clause prevented taxpayer money from going to religious schools, but a decision in favor of the church on the playground resurfacing money could open the door for use of vouchers in religious schools.
The Right, on the other hand, having long abandoned federalism or states’ rights, seems to be lining up in favor of the church for the same reasons the Left opposes.
This decision will make some interesting reading.
William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the book Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.