This Wednesday, April 19, the U.S. Supreme Court will hear a religious–liberties
case, Trinity Lutheran v. Comer, that focuses on a playground on a church campus
in Columbia, Mo., but could have widespread impact across the nation.
The court is at full strength this week for the first time in more than a year,
thanks to the addition of Justice Neil Gorsuch earlier this month to replace the
late Justice Antonin Scalia.
The church is challenging a provision in the Missouri Constitution commonly called
Blaine Amendment language. It’s based on 19th–century legislation that
never became part of federal law (James Blaine was a former Speaker of the U.S.
House of Representatives, U.S. Senator, and candidate for president from Maine in
1884). Legal analyst Nate Madden
that the Blaine Amendment had its genesis
in a time in U.S. history when anti–Catholic sentiment ran rampant in public
Though not enacted at the federal level, versions of the law exist in more than
35 states. The law generally forbids any house of worship from receiving the same
benefits the state may make available to secular organizations.
The case before the U.S. Supreme Court involves rubber crumbs made from recycled
tires that the state of Missouri made available through a grant program for playgrounds.
A state program made the crumbs available for playgrounds throughout Missouri, as
a safer alternative to gravel or other ground cover.
Trinity Lutheran Church now operates a state–licensed preschool and day–care
center that initially opened as a non–profit corporation in 1985. It sought
the rubber crumbs for its playground under a grant program operated by the Missouri
Department of Natural Resources. Though, according to Alliance Defending Freedom,
the church initially qualified on merit for the grant, its application was denied
under the state’s Blaine Amendment language. The church sued, claiming its
exclusion violated the First Amendment guarantee of religion and speech as well
as the Equal Protection Clause of the Fourteenth Amendment.
The church lost at both the federal district court and the 8th Circuit of the U.S.
Court of Appeals before the U.S. Supreme Court agreed to take the case in November
2015, before Scalia’s death. It’s clear that the high court scheduled
hearings for as late in its term as possible in hopes of having a full complement
of justices following the death of Scalia.
Madden notes that taken literally, the Blaine Amendment language can be problematic,
to greatly understate the matter. If public funds can never be used to benefit a
house of worship, does that mean that police cannot respond to a shooting at a church?
If a fire breaks out at a synagogue or a mosque, is the local fire department barred
from responding? Clearly not, and yet anti–religious zealots are claiming
that the Blaine Amendment’s archaic language must be enforced over an issue,
children’s safety, that at best only peripherally impacts the church’s
One such zealot organization, Americans United for Separation of Church and State,
claims that the case “threatens to disturb the healthy distance between religion
and government.“ It also suggests, falsely, that if the church wins “state
and local governments will be required to give taxpayer funds to churches, synagogues
and mosques.” The truth is that if the church wins, houses of worship in Missouri
and possibly in other states will no longer be unfairly disqualified for grant programs
for which they otherwise qualify. Providing materials to make a playground safer
can hardly be equated with government funding of a house of worship.
We believe this is a case in which a church clearly has common sense on its side.
An archaic law that was likely enacted with discriminatory intent is standing in
the way of the constitutional ideal of religious liberty.
It should be an easy case for the U.S. Supreme Court, and we hope that Trinity Lutheran
Church v. Comer becomes an important victory for houses of faith in this nation.
We’ll be watching the case closely and anticipating the court’s decision,
which should be released near the end of June.