Constitution Daily

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Supreme Court Preview: Religion and access to government programs

September 23, 2016 by Scott Bomboy


One of the more interesting cases upcoming at the Supreme Court this term involves the legacy of the controversial Blaine amendments, which many states use to restrict public financial aid to religious-affiliated institutions.

Image: Missouri Dept. Of Natural Resources

In Trinity Lutheran Church of Columbia v. Pauley, the eight Justices on the Court will try to answer the question of whether religiously affiliated schools can be constitutionally denied equal access to a government benefit, even if the benefit has nothing to do directly with matters of faith.

The benefit is a program in Missouri that provides rubberized material for school playgrounds made out of old tires. Missouri’s constitution bars parochial schools from receiving such public benefits.

That provision in Missouri’s constitution is one of the so-called Blaine amendments. The controversy over Blaine amendments has its origins in the presidential campaign of 1876. At the time, Republican candidate James G. Blaine sought anti-Catholic voters in his quest for the White House.

Blaine proposed a federal constitutional amendment that stated in part that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect.”

Blaine’s effort for a national constitutional amendment failed in Congress (as did his 1876 presidential campaign), but many states over the years adopted their own “Blaine amendments” in their own constitutions. About 35 states now have some form of a Blaine amendment on the books.

In recent years, the United States Supreme Court has made it clear that states can relax some of their Blaine amendment provisions, and they can provide some forms of neutral aid to religious institutions.

Trinity Lutheran Church Of Columbia, Missouri, as a 501c3 non-profit, wants the Justices to answer the following question:  “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.”

Link: Read About the First Amendment in our Interactive Constitution

The Trinity Lutheran congregation operates a daycare learning center, and it maintains a playground used by the pupils as well as by neighbors in town after school and on weekends.

Its playground is currently surfaced with gravel, which can be abrasive. Trinity Lutheran applied for a state grant that provides rubber surfacing material for playgrounds made from recycled tires. The state imposes a fee on the sale of new tires to pay for the program.

Trinity Lutheran finished fifth among 44 grant applicants, but it was denied the materials because of Missouri’s Blaine amendment. The state did award grants to 14 other applicants. In May 2015, a divided U.S. Court of Appeals for the Eighth Circuit ruled for the state of Missouri after Trinity Lutheran claimed it was unjustly denied the grant.

In its 2-1 decision, the Eighth Circuit  majority cited Locke v. Davey (2004), a decision from the Rehnquist Court that said Washington state could exclude students pursuing a degree in devotional  theology from a publicly funded scholarship program.

Link: Read The Eight Circuit’s Ruling

Judge James B. Loken, writing for the majority, said that he believed that despite its assertions, Trinity Lutheran’s claims “are plainly facial attacks on Article I, § 7, of the Missouri Constitution, which provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church,’ and which was cited by [the state] as the sole basis for its denial.”

“Viewed in this light, it is apparent that Trinity Church seeks an unprecedented ruling — that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church,” Loken said.

Judge Raymond Gruender didn’t agree with the majority that Trinity Lutheran was seeking to overturn the state’s Blaine amendment. “Trinity Lutheran does not contend that Article I, § 7 of the Missouri Constitution is unconstitutional in all of its applications,” Gruender wrote.

“The substantial anti-establishment interest identified in Locke is not present here,” Gruender added. “Unlike a student preparing for the ministry, which is ‘an essentially religious endeavor,’ schoolchildren playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”

The full Eighth Circuit Court of 10 judges split on reconsidering the panel ruling, and Trinity Lutheran’s case was accepted by the Supreme Court in January 2016, before the death of Justice Antonin Scalia.

Judge Loken, in his opinion, cited Scalia’s dissent in the 2004 Locke case.

“When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax,” Scalia wrote in 2004.

“If the Court were to adopt this view, and if Justice Scalia’s reference to withholding benefits to ‘individuals’ were held to include direct public benefits to churches, then Article I, § 7, of the Missouri Constitution could not be validly applied to deny church participation in a host of publicly-funded programs. That may be a logical constitutional leap in the direction the Court recently seems to be going, but it is a leap of great magnitude,” Loken said. “In our view, only the Supreme Court can make that leap.”

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