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Trinity Lutheran, Claiming Religious Discrimination, May Get Its Tire Mulch After All

By Casey C. Sullivan, Esq. on April 19, 2017 | Last updated on March 21, 2019

Trinity Lutheran finally had its day in the Supreme Court and things seem to have gone well. The Missouri church is challenging its exclusion from a state program that provides grants for resurfacing playgrounds with recycled tire material -- except if, like Trinity Lutheran's, those playgrounds are part of churches. That violates its right to free exercise and equal protection, the church argues.

After a year and a half of waiting, the church finally made its case during oral arguments today and many of the justices seemed to be leaning its way.

At Least Two Enthusiastic Supporters of the Wall Between Church and State

When it comes to providing state support for religious organizations, the Missouri Constitution goes further than the federal one, specifically prohibiting state funding "in aid of any church" and prohibiting the use of state money for religious schools. It was that constitution that prevented the church from benefiting from the playground resurfacing grant, Missouri argued at the time.

At the Supreme Court today, Missouri's attorney, James Layton, framed the exclusion as one of selective and general benefits. The state would not deny churches general benefits such as firefighting services, he explained, because those are available to everyone. But a grant program, in which only a handful of applicants receive funds, is not.

The state's arguments seemed to resonate with only two justices, Justices Ginsburg and Sotomayor. The Supreme Court established, in 1947's Everson decision, that "what the Framer's didn't want was tax money imposed for building and maintaining church property," Justice Ginsburg explained. "And doesn't that fit this case?"

Trinity Lutheran, Sotomayor said, was conflating funding with religious practice. "How is the building separate from the religious exercise therein?" Justice Sotomayor later asked. "I believe that this playground is part of the ministry" itself.

"How do you separate out its secular and religious function?"

A Majority Seems Unconvinced by Missouri

But outside of Justices Ginsburg and Sotomayor, Missouri faced a highly skeptical Court. Justice Alito wondered how you would distinguish a general program and a selective one, particularly when the selective government program was based on otherwise neutral criteria. How would programs that protect synagogues from violence, or repair churches damaged by terrorism, fair under Missouri's rules, he asked.

Justice Kagan too was skeptical. Excluding only religious organizations from applying to general grants "is a clear burden on a constitutional right," she said. Such a burden would trigger heightened scrutiny, making Missouri's exclusions harder to justify.

Even Justice Breyer didn't seem to be buying the state's arguments. The state can't offer fire protection to all buildings, but let churches burn down. How, then, does the Constitution "permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?"

The newest member of the Court, Justice Gorsuch, asked why the government would want to exclude religious organizations from selective programs rather than general ones. "How do we draw the line between selective and general?" he asked. "One could seem to play with that line forever."

Before today, it was thought that Trinity Lutheran had been delayed so long so that the new justice could break a probable tie, avoiding a 4-4 split on an important constitutional issue. After today's oral arguments though, it doesn't seem like the Court will be so closely divided.

So Long, Farewell, Auf Wiedersehen, Adieu

A decision in the case is expected by June, but I won't be here to relay it to you as this is one of my last posts for FindLaw. It's been a pleasure to spend the past two years and 2,455 entries with you, covering everything from the Court's landmark gay marriage ruling, to the future of administrative law, to the biggest hipsters on the Supreme Court.

Sadly, my tenure might not be remembered for the groundbreaking analysis we did on Justice Breyer and normcore, at least not when it comes to our web traffic. That privilege goes to the "13 Worst Supreme Court Decisions of All Time," a wildly and unexpectedly successful blog post that's already being plagiarized by middle schoolers today, I'm sure. Now that's a legacy.

And of course, even when I'm not writing, I'll stick around as a reader myself.

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