Law & the Courts

Why Is Missouri Unfairly Discriminating against Church Playgrounds?


Ensuring that children can safely slide down slides and swing on swings is not a manifestation of creeping theocracy. Unfortunately, the Missouri Department of Natural Resources and the Eighth Circuit Court of Appeals disagree.

The Supreme Court recently agreed to review Trinity Lutheran Church v. Pauley, a case which held that states are constitutionally permitted to discriminate against religious institutions in order to protect children from the scourge of safer playgrounds. The Supreme Court should reverse the lower court and reaffirm that the First Amendment prohibits governments from disfavoring religious organizations simply because they are religious.

Trinity Lutheran involves Missouri’s refusal to allow a church-run preschool to participate in a program aimed at providing playgrounds safe rubber surfaces. The Department of Natural Resources admitted that the school was otherwise qualified, but claimed that Missouri’s constitution prohibited it from “directly or indirectly” aiding “any church, sect or denomination of religion.”

Under the First Amendment’s Free Exercise Clause, it is unconstitutional for a state to prohibit religious organizations from participating in programs that are — at most — tangentially connected to religious activities.

The Supreme Court previously addressed a similar issue in Locke v. Davey. In that case, the Court held that a state could, without violating the First Amendment, prohibit citizens from using state scholarship money to pay for degrees in devotional theology — that is, the training of clergy. At first glance, this precedent may seem to support Missouri’s position, but a closer inspection proves that Locke is fatal to its case.

In Locke, the Supreme Court expressly disclaimed the notion that states had carte blanche to discriminate against religious institutions. Instead, it held that states could refrain from funding “an essentially religious endeavor,” like the training of clergy, because doing so did not evidence an impermissible hostility toward religion.

The Locke decision specified that “the only interest at issue here is the state’s interest in not funding the religious training of clergy.” The clergy restriction was a byproduct of states’ historic antipathy to funding “church leaders” rather than animus towards religion. States had an historical interest in avoiding such payments because of their close connection to establishing state religions.

Preventing children from scraping their knees is not ‘an essentially religious endeavor’ and presents absolutely no danger of establishing a state religion.

The same cannot be said for Missouri’s policy in the Trinity Lutheran case. Preventing children from scraping their knees is not “an essentially religious endeavor” and presents absolutely no danger of establishing a state religion. Disfavoring religion is the only conceivable explanation for excluding all churches from the playground-safety program.

In Locke, the Court found it significant that the scholarship program “goes a long way toward including religion in its benefits.” The state allowed students to use the scholarships to attend “pervasively religious schools” and take religious-studies courses as long as they were not specifically training to become clergy. Missouri’s policy displays no such nuance and simply excludes all religious organizations.

The Court upheld Locke’s scholarship program because it walked a narrow line between the First Amendment’s Free Exercise and Establishment Clauses. The program’s religious restrictions were tailored so that they only imposed a “minor burden” on citizens’ free exercise of religion, while furthering the state’s interest in avoiding the establishment of religion. The safe-playgrounds program, on the other hand, does not further any anti-establishment interest and is in no way designed to minimize its impact on citizens’ free-exercise rights.

Justice Antonin Scalia dissented in Locke. He worried that states would use its holding to “justify the singling out of religion for exclusion from public programs in virtually any context.” Missouri’s actions in this case, and the Eighth Circuit’s decision upholding those actions, demonstrate that Justice Scalia’s fears have been realized.

The Eighth Circuit recognized that “there is active academic and judicial debate about the breadth” of Locke, but it ignored that debate as well as the actual holding of Locke in finding that it supported Missouri’s decision. The circuit court justified the state’s discrimination against religion on the basis of its interest in creating a “high” or even “absolute” wall of separation between church and state. Adopting a rule that relegates religious organizations to such second-class status contradicts Locke’s recognition that the Constitution prohibits states from “disapproving of . . . religion in general.”

The Eighth Circuit decided that states are permitted to withhold any “direct expenditure of public funds to aid a church.” Such reasoning would justify nearly unlimited governmental discrimination against religious institutions. Could a state deny religious organizations police and fire protection?

The defendants do not, and in fact could not, deny that the logical implication of this argument would allow states to refuse police and fire protection to religious organizations. They merely argue that it is a “far-fetched hypothetical” and that “there is no reason to believe” that anyone “will begin to do so.” While this may be true, it highlights the absurdity of the defendant’s position. It also does not diminish the harm suffered by the pre-school children discriminated against in this case.

The defendants argue that if they allow this preschool to participate in their playground program it would send “a message that those who join a particular church’s ministry and thus play at that church are more worthy” of receiving state benefits than those who do not join that ministry. The argument that citizens will look at a church’s newly padded playground as a sign that the state has endorsed that church’s religious teachings nears self-parody. This argument is particularly absurd because the playground is open to children from the surrounding community who do not attend the school.

States have an interest in protecting every child from injury, even if those children’s parents choose to send them to a religious school. As long as the state does not single out religious schools for particular benefit, and awards playground-safety grants based on religiously neutral criteria, there would be no plausible reason to think it had endorsed a school’s religious teachings.

In his Locke dissent, Justice Scalia proposed the “fanciful” seeming hypothetical that a state might “deny priests and nuns their prescription-drug benefits” on the basis that doing so would financially aid a religious organization. Even that hypothetical pales in comparison to the absurdity of denying safe playground equipment to religiously affiliated playgrounds under the banner of erecting a wall of separation between church and state.

Only the most fanatical anti-religious zealot would think that providing children with a safe playing surface at a church-run preschool raises the same religious-establishment concerns as funding the training of clergy. The question of how far states are allowed to go in discriminating against religious organization has split the legal academy and the lower courts — it is time for the Supreme Court to clarify that such discrimination is only permissible in the narrowest of circumstances.

Howard Slugh — Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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