The next big Supreme Court battle over 'religious liberty' is set to unfold - and one group just issued a major warning

Posted July 17

A group devoted to enforcing the separation of church and state is warning that an upcoming Supreme Court battle could "undermine core tenets of religious liberty."

Americans United for Separation of Church and State released two blog posts this week about the Trinity Lutheran Church of Columbia v. Pauley case, warning that it "could dramatically increase the amount of state money given to religious organizations" — something that the group believes would be improper.

That's a bold proclamation, especially considering that the dispute at the center of the legal conundrum involves something as benign as "rubberized surface material," which includes a variety of fillers used on children's playgrounds.

But while the case might seem simple on the surface, both sides argue that there are important and profound First Amendment implications.

According to Alliance Defending Freedom — a conservative legal firm that is representing the Missouri-based Trinity Lutheran Church — the case surrounds a preschool and daycare center that is run by the house of worship. Attorneys there believe that they have a solid discrimination case on their hands.

"(The school) was excluded from a Missouri program that provides grants to purchase rubberized surface material (made of recycled tires) for children’s playgrounds," reads a description from the firm. "Although the state highly ranked the center as qualified for the program, it denied the center’s application solely because a church runs the daycare."

The battle started in 2012 when Trinity Lutheran Church Child Learning Center applied for a grant from the Missouri Department of Natural Resources. The government body offers the "Playground Scrap Tire Surface Material Grant Program," an effort to offer grants for playground materials.

Americans United said that the program provides government money to "public schools and nonprofit organizations" so that rubber chips from recycled tires and other related materials can be used at parks and on playgrounds.

A notice on the Department of Natural Resources' website says that the 2016 program is open to "public schools, private schools, parks, nonprofit day care centers, other nonprofit organizations, and governmental organizations other than state agencies."

According to Alliance Defending Freedom, the church-run childcare center was looking to remove pea gravel and to use rubberized product in its place. But the law firm claims that the government disqualified the school due to its religious affiliation with Trinity Lutheran Church of Columbia.

A judge initially threw out the church's lawsuit against Missouri officials, leading Alliance Defending Freedom to appeal to the U.S. Court of Appeals for the 8th Circuit, where the court sided again with the state government.

The Supreme Court later agreed in January 2016 to hear the case. Thus far, attorneys general from 10 states — Nevada, Arizona, Arkansas, Colorado, Georgia, Montana, Ohio, Oklahoma, Utah and Wisconsin — support the church in the dispute.

"No state can define religious neutrality as treating religious organizations worse than everyone else," said David Cortman, an attorney with Alliance Defending Freedom. "That isn’t neutrality; it’s a hostility to religion that violates the First Amendment. That’s the primary issue that the Supreme Court will address."

But while Trinity Lutheran Church believes that it was the victim of religious discrimination, Americans United takes an entirely different view on the matter, believing that the school does not have the right to take state dollars.

In a series of two blog posts, Americans United detailed the school's religious nature, which carries through to its curriculum and classroom instruction.

"Plainly, Trinity Lutheran uses its preschool to evangelize, instruct children in the tenets of Christianity, and minister to families with young children — all of which are religious activities," the organization said.

At the center of the government's refusal is text in the Missouri State Constitution that speaks to the issue of church-state relations, according to Americans United.

Article 1, Section 7 of the Missouri Constitution proclaims: "That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship."

While critics will likely seize on the first portion of the text, supporters of the church will likely find backing in the latter part that deals with discrimination against churches, feeling as though the school was unfairly singled out and cut from the government program.

But Americans United said that this so-called "no-aid clause" in the Missouri State Constitution has historical roots, and that the government was in the right, filing a friend-of-the-court brief that opposes state funding for religious schools.

"Not only does governmental support of religion undermine believers’ independence, but the Founders recognized that the provision of taxpayer money to a religious institution is itself a religious-liberty violation," Americans United said in an explainer published on its website.

The Supreme Court is slated to hear oral arguments in the fall.

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