Inside the Supreme Court: Are Justices Ready to Side With Church in Case About Playground & State Funding?
A majority of Supreme Court justices displayed skepticism towards Missouri’s reasoning behind excluding a church-affiliated preschool from a program that resurfaces playgrounds. The case, Trinity Lutheran Church v. Comer, arose after Missouri officials denied the preschool’s application to a state-funded program that uses recycled tires for playground resurfacing. The officials cited a clause in the state constitution that prohibits funding of religious institutions, while the church argued that it was being unlawfully excluded from a public benefit due to its religious affiliation. Justice Neil Gorsuch, in his first week on the bench, made only brief remarks towards the end of the arguments.
The justices honed in on the fact that the program aims to promote health and safety, which they suggested is a legitimate reason for states to provide funding to religious institutions, as long as it does not promote a religious purpose.
Outside the court, the Alliance Defending Freedom and Concerned Women for America, who represented Trinity Lutheran, demonstrated alongside a few children playing on a small slide beside a pile of tires. They were surrounded by gold balloons that spelled "fair play."
Justice Stephen Breyer raised the point that it would be preposterous and potentially unconstitutional for a state to deny essential services such as police, fire protection, or health programs like vaccines to a church. He questioned, "How does [the Constitution] allow Missouri to deny funding to the [church] for the purpose of ensuring the safety of children on the playground, preventing injuries or illnesses? What is the distinction?"
The justices were particularly skeptical of arguments presented by former Missouri solicitor general James Layton, who claimed that the playground resurfacing program differs from a broader public safety program because it is selective, requiring the state to choose winners and losers instead of being universally available. Justice Gorsuch rejected the notion that drawing a line between universal and selective programs would resolve the issue, remarking, "One could seemingly debate that line indefinitely."
Justice Elena Kagan asked challenging questions to both attorneys but appeared sympathetic to the preschool’s position. She stated, "It seems to me … this is a clear violation of a constitutional right," referring to Missouri’s denial of Trinity Lutheran’s application.
Similar provisions to the one in Missouri’s constitution, known as Blaine amendments, are present in nearly 40 state constitutions and have faced challenges in relation to state voucher and education savings account programs. The matter of private school choice was not specifically addressed during the arguments, although several education groups mentioned it in their briefs submitted to the court. Kagan endorsed these state provisions, arguing that due to the conflicting concerns of discrimination and illegal state support of a church, there is value in allowing states to make their own decisions on the matter.
Justice Sonia Sotomayor was particularly pointed in her questioning of David Cortman, the attorney representing the church. She argued that Trinity Lutheran appeared to be confusing money with religious practice. Sotomayor stated that the church would not shut down without the state grant money and emphasized that "no one is taking the playground away from you."
Only Sotomayor and Justice Ruth Bader Ginsburg, who referenced the significant 1947 Everson ruling that the U.S. Constitution’s ban on federal aid to religion also applies to states, appeared to fully side with Missouri.
The justices briefly mentioned the issue of whether the dispute became irrelevant after Republican Governor Eric Greitens recently announced that religious nonprofits would be eligible for certain state grants, including the playground resurfacing program being discussed. Attorneys for both sides argued that the dispute remained relevant due to the ability for future governors to change the policy and for any Missouri taxpayer to bring a lawsuit challenging Greitens’s decision.
A decision on the case will be made before the court’s adjournment for this term in late June.