by Brita Darling
Will the decision in a dispute concerning rubber playground surfaces in Missouri affect where students go to school in Douglas County, Colorado?
The United States Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia Inc., v. Pauley, No. 15-577, on April 19, 2017. While the Supreme Court has declined to hear many religion cases in the recent past, it agreed to hear this case before Justice Scalia’s death.
Like many churches, Trinity Lutheran runs a preschool on church grounds and, like any good preschool, it has a playground. After school hours and on weekends, children from the surrounding community use the playground. In 2012, Trinity Lutheran learned about the State of Missouri Playground Scrap Tire Surface Material Grant Program—we’ll just call it the grant program—which provides grants to certain nonprofit organizations to purchase rubber pour-in-place playground surfaces made from recycled tires. The purpose of the grant program is to make playgrounds safer, while at the same time reducing the amount of used tires in landfills and illegal dump sites in Missouri. A fee on new tires funds the program.
Hoping to replace its playground’s pea gravel surface, Trinity Lutheran submitted a grant application to the Missouri Department of Natural Resources (DNR) and was identified as a strong candidate for a grant based upon neutral grant program criteria. However, instead of receiving a grant, Trinity Lutheran received a letter from the DNR informing it that the department was unable to provide direct financial assistance to churches pursuant to Article I, Section 7 of the Missouri Constitution. Missouri’s Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion… .” If this language prohibiting direct or indirect aid to churches sounds familiar, it should. Colorado’s Constitution includes nearly identical language. Both Missouri’s and Colorado’s constitutional provisions are referred to as “Blaine Amendments,” after U.S. Representative James Blaine, who proposed a failed amendment to the U.S. Constitution in 1875 that included similar language. Most states that entered the Union after 1850 have Blaine Amendment provisions in their state constitutions. Many historians believe that the purpose of the Blaine Amendments was to prohibit funding to sectarian schools, reflecting the anti-Catholic sentiment of the times. These provisions are also referred to as “super-Establishment Clause” provisions because courts have interpreted them to permit stronger prohibitions on government aid to churches than are required by the federal Establishment Clause in the First Amendment to the U.S. Constitution, which prohibits Congress from making a law concerning the establishment of a religion.
Some people argue, however, that application of the Blaine Amendments in some cases actually violates another clause of the First Amendment of the U.S. Constitution—the Free Exercise clause—which prohibits any laws prohibiting the free exercise of religion.
Trinity Lutheran sued in the U.S. District Court in Missouri, claiming that the DNR’s decision to deny a program grant to the church preschool violated the Free Exercise, Free Speech, Equal Protection, and Establishment Clauses of the First and Fourteenth Amendments to the U. S. Constitution, as well as violating Article I, Section 7 of the Missouri Constitution. Trinity Lutheran’s lawsuit does not seek a ruling that Missouri’s Blaine Amendment is unconstitutional on its face, but only as applied to the church to prohibit its participation in the grant program.
The district court dismissed Trinity Lutheran’s complaint in its entirety, reasoning that the grant program involved a direct payment to a sectarian institution that raised “antiestablishment” concerns. The Eighth Circuit Court of Appeals agreed with the district court, furthering a split among the federal and state courts that have dealt with similar cases, with the First and Fifth Circuits and the Colorado Supreme Court on one side and the Seventh and Tenth Circuits on the other. The split involves whether state establishment clause provisions, like Blaine Amendments, can justify the exclusion of religious groups from generally available government programs.
The resolution of the split among the courts seems to hinge upon the correct interpretation of the United States Supreme Court’s decision in Locke v. Davey, 540 U.S. 712 (2004). In Locke, the Supreme Court held that the State of Washington could deny an otherwise neutral scholarship to a student who was pursuing a devotional theology degree. Critical to the Supreme Court’s holding was that the scholarship would be used to fund the devotional training of clergy, an area where the state’s antiestablishment concerns are historically high. The Supreme Court held that denying funding for theology degrees fell within the “play in the joints” between what the Establishment Clause allows and what the Free Exercise Clause requires.
So, how much “play in the joints” is there? The question the Supreme Court has agreed to resolve in Trinity Lutheran is “whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.” Unlike the facts in Locke, where the state refused to pay to train clergy, in this case, no one can argue that providing safe playground surfaces promotes any religious purpose whatsoever. Further, Missouri’s intention to improve child safety and reduce waste tires in landfills is fully realized by awarding a grant to Trinity Lutheran in addition to nonreligious preschools. Trinity Lutheran argues that while Locke involved the historical establishment clause concern of the state funding the training of clergy, Locke does not permit the categorical exclusion of religious groups from generally available secular benefits, like the safer playground surfaces at issue here, or other secular services, such as fire or police protection.
So what does this Missouri playground case have to do with where children attend school in Douglas County, Colorado? We’ll see. In 2015, the Colorado Supreme Court decided Taxpayers for Public Education v. Douglas County School District, 2015 CO 50. As explained in a previous LegiSource article, the court held that the Douglas County School District’s Choice Scholarship Program could not award scholarships directly to students who then enroll in private religious schools. The Douglas County School District has filed for writ of certiorari to the United States Supreme Court and, although briefing on the writ concluded at the beginning of this year, the Supreme Court has not yet decided whether to hear the case. Colorado’s Blaine Amendment and the correct interpretation of Locke are pivotal issues in the Colorado case, however, and commentators believe that the Supreme Court could use Trinity Lutheran as its vehicle to announce a decision that will have a conclusive effect on the Colorado case, as well. To that end, Douglas County, the State of Colorado, and many others interested in the Douglas County decision, have filed amicus briefs to ensure that its arguments are before the Supreme Court during its deliberations in Trinity Lutheran.
The Trinity Lutheran case is scheduled for oral argument before the Supreme Court on April 19. Court watchers are waiting to see if Supreme Court nominee, Neil Gorsuch, is confirmed in time for the April sitting. If not, this case could end on a 4-4 tie vote, which would leave standing the decision of the Eighth Circuit Court of Appeals.
 Article IX, Section 7. Aid to private schools, churches, sectarian purpose, forbidden. Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose. [Emphases added]
 Douglas Cnty. School Dist. v. Taxpayers for Public Education, No. 15-777 (Cert. filed Oct. 28, 2015).