Gravel paves the playground of Trinity Lutheran Church’s Child Learning Center in Columbia, Mo., on Oct. 18, 2016. RNS photo by Sally Morrow

Supreme Court justices side with church in playground dispute

WASHINGTON (USA Today) A clear majority of Supreme Court justices seemed ready Wednesday (April 19) to rule that the separation of church and state should not extend to swings and slides.

In a case with implications for more than 30 states that prohibit using public funds for religious purposes, the justices appeared aligned against Missouri's refusal to include a Lutheran church in a grant program that provides funding to resurface playgrounds and make them safer.

The high court had delayed hearing the case for nearly a year after the death of Justice Antonin Scalia, perhaps because of fears the eight remaining justices would split along ideological lines, as they have in some cases involving religious liberties. But the addition of conservative Justice Neil Gorsuch this month may not have been necessary.

"It does seem as though ... this is a clear burden on a constitutional right," liberal Justice Elena Kagan said in reference to the state's refusal to treat Trinity Lutheran Church as equal to other nonprofits seeking state grants, given that the church met all the neutral criteria for the program.

If the high court were to rule against the church on such a safety issue, said Justice Stephen Breyer, another liberal, "we proliferate litigation forever in areas that are critical, like police, fire, health" from aggrieved religious institutions seeking to participate in secular activities.

Their concerns raised the possibility that the court would rule 7-2 in favor of the church, though perhaps on narrow grounds, so as not to set a broad, nationwide precedent on public funding for religious institutions. Justices Ruth Bader Ginsburg and Sonia Sotomayor did not seem inclined to support any such funding.

RELATED: In America, religious groups should pay their own way (COMMENTARY)

The case dates back to 2012, when the Columbia, Mo., church applied for a state grant to replace the unforgiving, pea gravel surface of its child learning center's playground with material made from recycled tires. It placed fifth among 44 applicants, 14 of which were awarded grants, but the church was passed over based on a provision of the state constitution.

The church's lawsuit soon became a cause célèbre among supporters of religious freedom, led by the Alliance Defending Freedom, which took its case to court. It lost at the federal district and appellate court levels, but the Supreme Court's decision in January 2016 to hear the case was seen as a positive sign. Then Scalia died the next month, prompting the court to delay hearing the case until now.

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Gorsuch's confirmation wasn't the only late-breaking event, however. Missouri's new Republican governor, Eric Greitens, last week reversed the state policy and said churches will be eligible for such grants in the future. That led some justices to wonder if Trinity's challenge was unnecessary.

"If we have no adversity, hasn't this case become mooted?" Sotomayor asked James Layton, the state's former solicitor general who argued in favor of the religious exclusion.

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The church raised two central claims in court papers. It said the exclusion violates the First Amendment’s protection against policies prohibiting the free exercise of religion, as well as the 14th Amendment's promise of equal protection for all. "This is clearly singling out a religious organization with no justification to do so," said David Cortman, the Alliance Defending Freedom senior counsel who argued the church's case.

If the Supreme Court were to rule against the church, its supporters say, that could give states justification to deny funds for other services, ranging from police and fire protection to soup kitchens and battered women's shelters. The conservative Institute for Justice says 1.3 million students in school-choice programs could be affected.

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Justice Samuel Alito, one of the court's staunchest defenders of religious freedom, cited a series of examples to illustrate that Missouri's exclusion of religious groups could extend to funding that protects against school violence or acts of terrorism. He and others wondered how those programs could be denied but not police and fire protection, which are required under the Constitution's equal protection clause.

If police and fire protection must be provided to the church, Breyer asked, how can the state "deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera? What's the difference?"

Layton, who worked for the state's prior Democratic administration, defended the policy as treating all religions and religious groups the same. While the free exercise clause requires that the state not interfere with the church's activities, it does not require state funding, he said.

"We don't want to be in a position ... where we are selecting among churches," Layton said.


  1. Although the basic facts are being reported correctly, this article drips with a ton of unnecessary and inaccurate bias concerning religious liberty and who is defending it. I remembered the author pulled the same crap when Obergfell was decided.

    The Christian privilege defending ADF is not going to get its full on attack on the Blaine Amendment as it hoped here. The religious liberty arguments from both sides were pretty disingenuous.

  2. What I would like to know is this: secular or religious, does replacing pea gravel for safety reasons constitute the alteration of an existing structure, hence triggering the need to make these playgrounds accessible to those with disabilities? (And not the whole thing, mind you, but at least one swing with a back and wide accessible steps that can be crawled up or with a stairless ramp to the top of the slide.)

  3. The religious freedom arguments were ridiculous on both sides here. The point of the suit was that Dominionists wanted to attack and repeal Blaine Amendments which codify strict separation of church and state.

    It looks like they won the legal battle but probably lost the war. There is no chance the majority decision will be anything but limited to its facts or of much precedent value.

  4. No hurries, no worries.

    Playground today, Obergefell tomorrow.

  5. If they won the battle good.
    If they lost the war so be it.
    In this case the money went to a playground connected to a daycare connected to a church. If grant money helps to provide affordable child care, especially in lower middle income communities, then it is money well spent on the public in that community. There is no public child care system that I’m aware of. Private schools dipping out of public school money, that is something completely different. If the end gain in bringing this case in the first place is only to gain access to the cash cow in a latter case, the “winners” should lose the war. The state should be in the business of providing to the public. The church should be in the business of providing to communities. The two should do those things seperately for many good reasons on both sides. Sometimes in the best interest of the public and the best interest of communities the church and state may need to touch. When self interest doesn’t rule and benefit of other is the goal, others win, as they should. Hopefully that’s the case in this case.

  6. “A journey of a thousand miles begins with a single step,” Confucius.

  7. As a pastor who worked in an urban church and sought funding for “non-sectarian” programs like summer day camps, let me tell you, it was a horrid experience. You are immediately judged as a group who will “brainwash” children and parents. Granted – there are communities who would like to use money to grow their church. There is a fine line when it comes to intent. So often foundations and government agencies look at churches in a stereotypical framework – perhaps out of their own experience and their own religious/anti-religious bias. The issue is integrity – the integrity of the leadership of the church to know they are serving the neighborhood community not the church community. In this case, in Missouri, common sense and common purpose would have been better than a five year court fight.

  8. Spuddle, citing the Blaine Admendment is an indication of either: one’s unreasonable bias against religion to the extent of forbidding the paving of a playground to assure the safety of children, OR, one’s rank ignorance of the origin of said admendment! Heavy Protestant majorities in Congress passed this admendment at a time when large numbers of Irish Catholics were immigrating to the US. The Protestants feared the new immigrants would place their allegiance to the pope back in their homeland, above their allegiance to the government of the new country!

  9. Hardly. The whole purpose of the lawsuit was an attack on state level Blaine Amendments. The religious freedom arguments employed by the plaintiff’s were entirely ridiculous here. Much like the ADF’s other lawsuit claiming that violating anti-discrimination laws is somehow free exercise of religion. It turns out that SCOTUS sidestepped the religious freedom issues entirely. The playground served no inherent religious purpose.

    “Heavy Protestant majorities in Congress passed this admendment”

    Wrong. The Blaine Amendment never passed in Congress. It was however adopted by 38 state legislatures.

  10. I think Sotomayor is correct in that the church has been granted relief by the state so there is no longer a need for the case and they should offer no decision.

  11. Generally overlooked in this case is the fact that in 1976 Missouri voters in a state referendum upheld their state’s constitution’s THREE separate bans on public aid to church institutions by 60% to 40%. Just as voters nationwide voted similarly in 28 state referenda between 1966 and 2014. Why can’t this church pave its own playground? And if this case goes their way will Missouri taxpayers have to tax taxes to help all churches, synagogues, mosques, madrassas, temples, shrines, and Scientology centers? — Edd Doerr

  12. “Granted – there are communities who would like to use money to grow their church.”

    Which would be an illegal use of the funding. Taxpayer money has no business going towards the promulgation of a given sectarian religious belief. Such efforts are never done in a fair or good faith manner and generally engage in favoritism by either majority or politically powerful religious groups.

    “The issue is integrity – the integrity of the leadership of the church
    to know they are serving the neighborhood community not the church

    Unfortunately the churches most likely to ask for government support are the ones least concerned with serving all people within a community. They are generally the ones who seek to attack the rights of those outside their church community.

  13. Apparently the justices did not think that was the case here. I have the same inclination about using tax monies. However if the children in the school are not required to share the same belief, and there is no proof that that was a requirement, and the children benefit -not the institution- why would you refuse to keep children safe? It’s a tricky business this church-state thing. As a person who lives both spheres, I take seriously the tension in which people of faith must live in our democracy. Theocracy is a real danger especially with the people in office right now and I am vigilant to those who believe this is a Christian nation. It isn’t, because Christianity is not an adjective. Only people can be Christian – not nations, not bookstores, not buildings, not business associations and certainly not businesses.

  14. I think there may be a difference between us as to what “growing a church” means.

    But I think we are both largely in agreement.

  15. Spuddlepants, you are about 2% correct–I DID report a few minor details inaccurately. I stated that “Heavy Protestant majorities in Congress passed this admendment . . . ” when it was really “Heavy Protestant majorities in 38 STATE LEGISLATURES” (out of 48!) that passed the admendment!” Well, Bully for you, Spuddle! You’re batting 1-in-100!

    Nothing that you said, nor anyone else–not even the two or three dissenting SCOTUS justices MIGHT say, can–in any way, represent a salient reason why paving a playground for the safety of children has ANYTHING to do with someone’s religion! One might as well argue against supplying drinking water from a public water system to a church day care on the same separation-of-church-and-state grounds!

  16. And yet in a that time it has served a purpose far beyond Catholic baiting. Fact is it also keeps Protestant churches from holding their hand out for public money.

    “-in any way, represent a salient reason why paving a playground for the safety of children has ANYTHING to do with someone’s religion!”

    Which is why the Dominionist ADFs religious freedom argument was so ridiculous. You don’t realize the court may have sided with the plaintiffs but not in the way their lawyers expected.

    We are in agreement here.

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