A church playground in Missouri has become the battleground for the next big religious liberty case coming before the U.S. Supreme Court.
This fall the Supreme Court will hear oral arguments in Trinity Lutheran of Columbia v. Pauley, a case that began in 2012 when the state rejected the church’s application to resurface its preschool playground with repurposed rubber from old tires.
Missouri officials said the church did not qualify for the program because of a provision in the state constitution “that no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
Holly Hollman, general counsel of the Baptist Joint Committee for Religious Liberty, said financial support was at the very core of what it meant to be an “established” church in colonial America.
Holly Hollman
“The move toward disestablishment was led by colonial Baptists and other religious dissenters who suffered at the hands of the government under establishments of religion,” Hollman said in a recent symposium about the case on Supreme Court of the United States Blog.
“Establishments eventually became seen as fundamentally at odds with the rights of conscience, religious equality and individual religious freedom,” Hollman said. “Disentangling the institutions of religion and the state was a necessary first step to protect religious liberty.”
The BJC has filed a brief in the case arguing that the ban on government establishment of religion does not demonstrate hostility to religion but serves religious liberty by keeping church and state separate.
The Ethics and Religious Liberty Commission of the Southern Baptist Convention, meanwhile, filed a brief claiming that excluding churches from a program open to other nonprofits amounts to discrimination in government aid.
The Alliance Defending Freedom said the state’s “categorical exclusion of religion in this case is unvarnished status-based discrimination that violates the Free Exercise and Equal Protection Clauses,” in a petition filed by lawyers including Michael Whitehead, former general counsel of what is now the ERLC and one-time Midwestern Baptist Theological Seminary professor who represents clients including the Missouri Baptist Convention.
Trinity Lutheran supporters appeal to a darker time in American history, when anti-Catholic bigotry broke out across the country in response to immigrants coming to the U.S. in the mid-1850s, posing a perceived threat to the Protestant status quo.
Called “Blaine Amendments” after an unsuccessful effort by Speaker of the House James Blaine to amend the U.S. Constitution to prohibit state funding of “sectarian” schools, critics say that laws that were motivated by anti-Catholic animus should be relegated to history.
Hollman said in her article there is no historical evidence that Missouri’s no-aid policy was the product of anti-Catholic animus. When Missouri entered the union in 1821, its first constitution prohibited the state from compelling anyone to erect or support a place of worship, she noted, and the majority of churches affected by the no-funding rule have always been non-Catholic.
Hollman said disestablishing church from the state “brought a new freedom for the institutional church by removing state financial support.”
“Religious groups of all types would thrive or fail based upon their membership’s passion and engagement, and would not depend on currying favor with government officials,” she wrote. “More than 200 years later, disestablishment is a resounding success as religion thrives in the United States at far greater rates than in most other industrialized nations.”
“Missouri is not preventing Trinity Lutheran Church from building, improving or operating its facilities consistent with its religious calling,” Hollman said. “Nor does Missouri prevent the church from having a playground or preschool and operating them consistent with its ministry priorities and community outreach efforts.
“Churches may choose to insulate themselves and their property or to throw open the gates to all who would enter,” she continued. “Church-owned facilities are not readily segregated between religious and secular uses, and the state should not be involved in deciding when such property is sufficiently dedicated to the public use or separated from the church’s core religious expression.”