Playgrounds, Religion and the First Amendment by Daniel Tagliarina
On April 19, a now-fully staffed Supreme Court heard oral arguments in Trinity Lutheran of Columbia, Inc. v. Comer. Originally accepted for Supreme Court review on January 15, 2016 (one month before the death of Justice Scalia) this case has been waiting at the Supreme Court level for a while. This long delay is suggestive of the complexities hiding within an otherwise straightforward case. While the case appears at first glance to be about playground surfaces, what lies underneath is a question of the proper relationship between governments and religious houses of worship.
To understand this complex question, we need to first look at what brought this case to the Supreme Court. The Missouri Department of Natural Resources (DNR) runs a Scrap Tire Grant Program where the DNR accepts applications from nonprofit organizations to be reimbursed for the cost of using recycled tires to refinish playground surfaces. The program encourages recycling, avoids putting tires in landfills, and allows for safer playgrounds. The case arose, however, because Article I, Section 7 of the Missouri Constitution, states, in part: “[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion ….” On the basis of this constitutional provision, Trinity Lutheran was denied funds through the Scrap Tire Grant Program.
Trinity Lutheran claims they were excluded from the grant program solely because they are a religious institution. They argue that this discrimination is a violation of their religious rights guaranteed to them by the First Amendment’s Free Exercise Clause. The Free Exercise Clause states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” [emphasis added]. They argue that by denying them access to a government program because they are a religious institution, the state of Missouri has violated Trinity Lutheran’s free exercise rights.
Missouri counters by arguing that the state constitutional provision was created to ensure that the state does not violate the Establishment Clause of the First Amendment of the U.S. Constitution, which is the other half of the quoted passage above. Herein lies the bigger issue of the case.
What is at issue is a wider concern related to how best to understand the language of the First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” Locked in this statement are two competing interests regarding religion in American law and society. On the one hand, the Constitution seeks to prevent officially created and acknowledged state religions, and on the other to prohibit legal barriers to the practicing of one’s faith.
The line between maintaining the “wall of separation between church and state” and allowing everyone to worship freely is not always clear. Neither of these clauses is taken to be absolutes, as the state may support religion in some ways while limiting religious practice in others. The challenge specifically becomes about striking this balance between allowing religion without having the state become involved in religion.
It is this balance at the heart of this case. Forget about tires and playgrounds for a moment, step back, and a larger picture emerges: this case is about the level to which the government can (and perhaps should) be involved in lending different forms of support for religion. It is not at all clear what playground surfaces have to do with the exercise of one’s faith, or how including religious organizations in competitive grants to nonprofit entities counts as a state-supported religion.
What is clear, however, is that the Court’s answer to this question is likely to raise more questions than it answers. Moreover, this conflict is also about inclusion within a broader American community. Funding priorities send a message about what a government finds to be important. Including and excluding religion both have impacts on how we portray the role of religious institutions in our society, and potentially in our government. Being told you may not practice an integral part of your faith can be just as damaging as watching the government embrace some religions, but not all.
Regardless of what the Court decides in this case (and it looks like Trinity has a good chance of coming out on top in this case), we must be careful with how we combine two separate, important entities such as religion and government. In an era of religious rights for (Christian) corporations, and travel bans of dubious intent, we must be careful to meaningfully preserve the integrity of our government and religious institutions. While “the wall of separation between church and state” is not explicitly found in our Constitution, that principle has been embraced by the federal government for a long time running. In the words of Madison:
“And in a Government of opinion, like ours, the only effectual guard must be found in the soundness & stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical & Civil matters is of importance. And I have no doubt that every new example will succeed, as every past one has done, in shewing that Religion & Govt. will both exist in greater purity, the less they are mixed together.”
Sometimes we need to preserve that which matters the most by keeping it free of intrusion from outside forces. Whether money to resurface a church-owned playground is an intrusion is hardly all this case is about.
Daniel Tagliarina is Assistant Professor of Government at Utica College.