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Lutheran playground case before court zeros in on religious liberty

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By Carol Zimmermann

WASHINGTON (CNS) — When the U.S. Supreme Court looks at a Lutheran preschool playground case April 19, it will go far beyond settling a schoolyard squabble and step into religious liberty turf.

At issue in Trinity Lutheran v. Comer is if the state of Missouri can exclude houses of worship in a playground refurbishment grant program using tire scraps.

The Lutheran church says its exclusion from the program violates the Constitution because it discriminates against religious institutions. The state disagrees, saying the church can still worship and operate but just won’t get state funds for its resurfaced playground.

In 2015, the 8th U.S. Circuit Court of Appeals upheld the state’s decision to deny the preschool’s grant application.

A full bench will hear oral arguments in this case, since Justice Neil Gorsuch is now filling the seat left vacant by Justice Antonin Scalia’s death last year. They will likely hear both sides argue different interpretations of the court’s 2004 decision in Locke v. Davey, which said that states do not have to provide tax-funded scholarships to college students who are pursuing careers in ministry.

The church said the reimbursement grant had nothing to do with religion, like the scholarship did, while opponents insist the state should not be providing any financial support to religious institutions.

At a Supreme Court briefing last fall before the court’s session began, C. Kevin Marshall, a partner with the Washington law firm Jones Day, said how the court responds to the playground case will have a broad effect.

He said the case raises religious liberty questions but is “less contentious” than last term’s Zubik v. Burwell, which challenged the Affordable Care Act’s contraceptive requirement for employers.

“We can get to basics here,” he said.

The U.S. Conference of Catholic Bishops filed an amicus brief supporting the preschool April 21, 2016, joined by the Missouri Catholic Conference, the National Catholic Educational Association, the Church of Jesus Christ of Latter-day Saints, the General Synod of the Reformed Church in America and the Salvation Army.

The brief argues that the only reason the school was excluded from the state grant program is because it is operated by a church.

“Missouri’s overt discrimination against Trinity Lutheran purely because of its religious status is repugnant to the First Amendment,” the brief said, adding that the state lacked any legitimate or compelling reason to exclude the school from the program.

The brief also said the United States has had “a long and venerable tradition of including religious institutions in neutral public aid programs” and said the state’s action sends the message that “religious people and their institutions are second-class citizens … not entitled to participate on equal terms in government programs.”

It said the government does not exclude religious institutions from basic public services like police and fire protection.

The dispute over the playground surface started five years ago when the school applied for a grant reimbursing nonprofit groups for the cost of purchasing and installing playground surfaces using recycled tires. The program is funded from a fee on the sales of new tires meant to reduce the number of tires in the state’s landfills and provide safe playground surfaces.

Missouri’s Department of Natural Resources, which administers the playground resurfacing program, ranked Trinity Lutheran’s grant application fifth out of the 44 it received. The department, which funds 14 grants, denied Trinity Lutheran’s application because the state constitution prohibits state funds from going “directly or indirectly, in aid of any church, sect or denomination of religion.”

For Trinity Lutheran, the bigger issue is the school’s constitutional right to freely exercise religion. Its supporters argue that to go against this right, the state would have to show a compelling interest.

They said the state failed to do this because the criteria used to determine which schools receive the grants and even the grants themselves have nothing to do with religion.

The state has rejected these arguments stressing that the playground program has a limited availability and the reimbursement funds were not generally available to the public since only a handful of all applicants were accepted.

Scotusblog, a blog on the Supreme Court, says supporters on both sides “predict that dire consequences will flow from a ruling for the other side,” noting that amicus briefs backing the church argue that if the lower court’s ruling and the program are upheld, “everything from school vouchers and fire and safety protection for private religious schools to social services — such as battered women’s shelters and soup kitchens — provided by faith-based organizations that receive public funds could be in jeopardy.”

Those siding with the state say a ruling favoring the Lutheran church could prevent the government from treating churches differently which “could result in taxpayer funds going to groups that discriminate based on sexual orientation or religion.”

The case has been sitting before the court for some time. It was granted a review last Jan. 15, nearly one month before Scalia’s death.

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Follow Zimmermann on Twitter: @carolmaczim.

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