A Blow to Blaine Amendments

A Case for Preventing Children's Scraped Knees
George F. Will: A case for preventing children's scraped knees

20 April, 2017

Until the argument, the case had appeared in danger of being derailed by a last-minute policy change.

Trinity Lutheran Church applied for a grant to resurface its preschool playground.

A strong ruling for Trinity would no doubt make it tougher for opponents to challenge school voucher programs in Blaine Amendment states.

Inside the Court on Wednesday, the justices pressed Cortman on whether the playground would be used for religious purposes and if that effectively constituted state funding of religious ministry.

"You're depriving one set of actors from being able to compete in the same way everybody else can compete, due to their religious identification", Justice Elena Kagan told a lawyer for the state.

Kagan pointed out that the selective program was offered to nonprofits.

This is clearly singling out a religious organization, with no justification. "It's a hard issue", Justice Elena Kagan said. "And then your interests have to rise to an extremely high level".

"We aren't asking for special treatment", continued Kiehne. If so, he said, why can Missouri "deny money for helping children not fall in the playground, cut their knees, get tetanus (or) break a leg"?

Liberal Justice Sonia Sotomayor was the most outspoken in backing Missouri's ban, referencing the difficulty states could face in separating out the secular and religious functions of religiously affiliated groups when distributing funds.

It is "quintessential discrimination" on the part of Missouri, Cruz said.

Trinity Lutheran's insistence that its playground resurfacing project is secular does not solve the problem, adds the state, because money is fungible, and because the church's religious intent is stated specifically in the Learning Center's mission. Ginsburg asked whether that precedent was "passé". The court Friday asked the church and the state to tell it whether the governor's announcement affects the case.

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But Justice Sotomayor noted that there were many cases in which states refused to fund churches, and that ruling against the church in this case wouldn't impede it from practicing its religion. He said that the state had conceded its denial of funding was "not facially neutral" and was "based on their religious character", thus making it "discrimination against religion". "The Supreme Court has previously suggested that they can, where the funding would otherwise support religious activities". The program was created to assist non-profit organizations in updating their playgrounds and making them safer, but because the Missouri constitution prohibits state money from going to religious organizations, Trinity Lutheran's application was denied.

If your heart goes out to religious groups denied state aid under this prohibition, take comfort in the fact that the governor of Missouri actually reversed it last Thursday.

David Cortman, a lawyer for the church, said it sought only to protect children of all faiths from injury and could not use the rubber in its religious work.

The church's case is for a "safe surface", Cortman replied, and just because the playground might be used for religious purposes does not mean that it should be ineligible for the funds.

But Trinity Lutheran and its lawyer argued protecting kids on a playground isn't going to promote religion and shouldn't be discriminated against.

Becket attorney Hannah Smith says the state rejected the application because Trinity is a religious institution. It will also be the biggest test for the court's newest justice, Neil Gorsuch, who was appointed by President Donald Trump. It also guarantees religion can be fully exercised.

Greitens' decision is a unsafe threat to religious freedom. These provisions forbid the use of any tax money to support churches or church schools.

The case has been a longtime coming to the Supreme Court which agreed to hear the case more than a year ago, a month before the death of Justice Antonin Scalia.

Oral arguments were held today in what is perhaps the most high-profile case remaining to be argued this term: Trinity Lutheran Church of Columbia v. Comer. "Nearly 40 state constitutions have similar constitutional provisions that opponents of school choice have tried to invoke in the past to halt school choice programs in their tracks", he said.

The court did not appear ready to scuttle the case, even after Gov. Eric Greitens, R-Mo., announced last week that he was changing the policy that said churches couldn't participate in the program.

"That's just wrong", he said. Jeffrey Mittman, the director of Missouri's branch of the American Civil Liberties Union, is among Greitens' critics who said that his move violates the state's constitution.

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