Churches should be allowed to participate in government programs on equal footing with other civic organizations, the Southern Baptist Convention’s public policy agency argued April 21. The SBC Ethics and Religious Liberty Commission filed a brief in a case before the U.S. Supreme Court that observers say could radically alter the way courts have traditionally understood the separation of church and state.
The ERLC is among numerous groups filing friend-of-the-court briefs siding with a church in Missouri denied the benefit of a state-run playground safety 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, section or denomination of religion.”
The Missouri Department of Natural Resources offers Playground Scrap Tire Surface Material Grants to qualifying organizations for the purchase of recycled tires to resurface playgrounds, a beneficial reuse of solid waste. Trinity Lutheran Church of Columbia, Mo., applied for funds to replace a playground surface for its Child Learning Center, a ministry serving families with young children ages 2 to pre-K. The DNR denied the application, citing the no-aid clause in the Missouri constitution.
The church filed a lawsuit claiming religious discrimination in 2013. A district court dismissed the suit, finding Trinity Church was not entitled to the funds under the Establishment Clause. The Eighth U.S. Circuit Court of Appeals upheld dismissal, noting greater constitutional concerns that would arise if the state got into the business of awarding scrap tire grants to some churches but not to others.
In the church’s Supreme Court appeal, lawyers for Alliance Defending Freedom claimed the policy excluding churches from the grant program violates the Equal Protection Clause, because it treats church-run day cares differently than others, and the Free Exercise Clause by targeting religion as a class for disparate treatment.
Simon Brown of Americans United for Separation of Church and State said ADL lawyers were making “a startling claim” that “the church has a constitutional right to taxpayer support.”
The Ethics and Religious Liberty Commission brief labeled religious freedom “an indispensable, bedrock value for Southern Baptists” and said thousands of churches represented by the agency “have an interest in not being discriminated against in government aid programs.”
The ERLC brief argued that there are no serious Establishment Clause concerns or risks from including The Learning Center in the scrap tire recycling grant program. “Nobody need fear an established church by means of a recycled tire surface on a playground,” the brief said.
“The ERLC is concerned not only with the unjustified treatment of Trinity Lutheran Church in this case but also with the overall trend of churches and religious actors being excluded from participating in government programs,” the ERLC said. “This disturbing trend cuts against the values undergirding the Free Exercise, Establishment and Equal Protection Clauses, which protect religion from being treated with hostility.”
It would be different if the state were funding religious education, the brief said, but when it comes to programs involving recycling and child safety, “Churches should be allowed to participate in government programs on equal footing with other civic organizations.”
Americans United for Separation of Church and State said lawyers representing Trinity Lutheran Church seek “nothing less than a fundamental alteration of the very idea of church-state separation as it applies to taxpayer funding of religious entities.”
“We were surprised that the Supreme Court took this case, and we are definitely concerned that the Supreme Court has taken this case,” Alex Luchenitser, associate legal director for Americans United, told The Washington Times. “It is possible that this case could erode state constitutional restrictions on the public funding of religious institutions.”
