Earlier today friend and former colleague David Cortman argued Trinity Lutheran Church v. Comer, the most important case about recycled tires in American legal history. Here’s how I described the case in a piece last year:
Missouri — because it purports to love children and the environment — created a program that uses scrap rubber from old tires to resurface playgrounds to make them safer. The program is funded through a surcharge on new tires, rubber that would otherwise pack landfills is put to good use, and kids bounce when they fall. Everyone wins, right?
Well, not everyone. Missouri excludes religious organizations from the program. Christian kids at Christian schools don’t get to bounce. So when Trinity Lutheran Church submitted a request for rubberized flooring for a playground that is used not just by the children at its Early Learning Center but also — after-hours and on weekends — by children in the community, the state denied its application. It relied on the state’s expansive version of the odious Blaine amendment to give it license to discriminate.
To put it plainly, Missouri took the position that it had the right to create programs that have nothing at all to do with religion but then withhold the benefits of those programs from religious institutions solely because they are religious. The lower courts ruled against the church, with the Eighth Circuit Court of Appeals noting that Missouri didn’t have to exclude the church from the program, but that it could if it wanted — in part because of the state’s “long history of maintaining a high wall between church and state.”
Justice Alito exposed the dangerous anti-religious animus behind the state’s position with a single question. Here’s Alito, questioning the state’s attorney:
JUSTICE ALITO: Well, Mr. Layton, you said you don’t want to — you don’t want to have a program that makes physical improvements to — to churches. And I just wanted to ask you about some Federal laws that are highlighted in the amicus brief filed by the Union of Orthodox Jewish Congregations, and get your reaction whether a program like that would be permissible under the Missouri constitution. So one of them is a Federal nonprofit security grant program providing grants through the Department of Homeland Security to harden — harden nonprofit organization facilities that are deemed to be at high risk for terrorist attacks. So if you have a –a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?
MR. LAYTON: The answer traditionally — and I’m not sure that I can speak for the current governor — of course, I was brought back to argue this case and instructed I could defend the prior position, but the answer traditionally would be no. State money could not be used to actually erect or — or operate or provide that kind of physical addition to a — to a church or synagogue.
Think about that for a moment. A synagogue or a mosque under actual physical threat couldn’t traditionally receive state aid available to every other kind of nonprofit. That’s what Blaine amendments enable. That’s how extreme they are.
It’s also worth noting that liberal justices expressed skepticism about the state’s position as well. For example, here’s an interesting comment from Justice Kagan:
JUSTICE KAGAN: So, Mr. Layton, let’s say I — I accept that the State might have an interest in saying we just don’t want to be seen as giving money to one church and not another in these selective programs.
MR. LAYTON: And that’s the endorsement side. There’s also entanglement.
JUSTICE KENNEDY: Yes. I –
JUSTICE KAGAN: I — I think that that’s legitimate.
But here’s the thing. There’s a constitutional principle. It’s as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled to that funding, to — to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things. And I would have thought that that’s a pretty strong principle in our constitutional law. And how is that the State says that that’s not violated here?
I hope and expect that Trinity Lutheran will win. I hope it’s a broad enough victory to fatally undermine Blaine amendments nationwide, but even chipping away is better than maintaining or strengthening a legal regime that empowers and sometimes even mandates anti-religious animus.