Supreme Court Shows Soft Spot For Church Denied Public Funding For Playground
- Author: Phil Peters Apr 20, 2017,
Apr 20, 2017, 9:17
In his brief rebuttal, Cortman pointed out that there is no endorsement problem here because the state set out neutral, secular criteria for its grant program-criteria that Trinity Lutheran met.
Justice Stephen Breyer asked if the state, without violating the U.S. Constitution, could say, "say we'll give everyone police and fire protection, just not a church?"
While the specifics of the case might seem less than - groundbreaking, the questions at oral arguments focused on the extremes, limits, and lines involved in issues that have long vexed the Supreme Court about the First Amendment's Free Exercise and Establishment clauses - and the so-called "play in the joints" between the constitutional mandates allowing for religious freedom and preventing government entanglement with religion, respectively. "Homeschoolers, by law in most states, can not access public school playgrounds and campuses and many homeschoolers do not wish to".
"This church is not going to close its religious practices or its doors because its playground doesn't have these tires", she told Trinity's attorney David Cortman. "You can't. operate this day care as a religious organization and receive the public benefit", he said.
If the justices agree, "the decision could have implications far beyond scrap tires and playgrounds", said Michael Bindas of the Institute for Justice, which is backing the church. "And then your interests have to rise to an extremely high level". Now, however, the argument could focus on an unanticipated issue, as the Governor of Missouri has announced a new policy that reverses the ban on houses of worship receiving state grants at the heart of the dispute. "All we want, all religious people in this country, are asking for, is equal treatment".
Two liberal justices - Justices Ruth Ginsburg and Sonia Sotomayor - seemed most staunchly on the side of the state.
Blaine Amendments can, and indeed should, block taxpayer subsidies of the parochial function of religious schools, or special programs aimed at churches, synagogues or mosques. He is known to have accepted a broader view of all religious rights during his time as a court judge in the Colorado federal appeals court.
But James Layton, representing the state of Missouri, countered that the Supreme Court has never required states to provide direct government grants to churches.
That prospect worries groups of public-school teachers and others who oppose vouchers and other forms of public aid for private schooling.
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Missouri is among roughly three dozen states with constitutions that explicitly prohibit using public money to aid a religious institution, an even higher wall separating government and religion than the U.S. Constitution erects.
"This religious exclusion wrongfully sends a message that some children are less worthy of protection simply because they enjoy recreation on a playground owned by a church", he said.
The district court's ruling was based in part on a 2004 Supreme Court decision in Locke v. Davey, in which the state of Washington was permitted to deny scholarship funding to a student of "devotional theology".
In 2012, officials applied for funding from a "Playground Scrap Tire Surface Material Grants" program operated by the Missouri Department of Natural Resources.
Mittman went on to say church versus state should continue to be enforced. "This court has held that a defendant's voluntary cessation of challenged conduct moots a case only if it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur". The state funded 14 of the applicants, but not Trinity Lutheran.
Religious freedom expert Gregory Lipper believes that a ruling in favor of the church could produce a slippery slope.
Comer, calls into question the state's application of that provision, which the church claims violates the federal Constitution. Wednesday's argument date was finally set February 17, shortly afterGorsuch's nomination. As our preview of the case noted, Trinity Lutheran's application for the programme was denied, despite being highly rated, because Missouri's constitution bars state funds from flowing, directly or indirectly, "in aid of any church, sect or denomination of religion".
In a statement he said that before he came into office in 2016, "government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids".