Supreme Court leans over slippery slope

Missouri preschool case could be bad news for state-church separation

In what could be a dangerous precedent, the Supreme Court of the United States appeared to lean toward breaking down a portion of the state-church wall that has prevented religious institutions from receiving public money.

A Missouri day care and preschool owned by Trinity Lutheran Church had requested a grant from a state fund to help refurbish a playground’s blacktopped surface with rubber particles. Missouri’s Constitution, like those in 38 other states, prohibits sending tax money to churches and church schools. When the state denied the funds, the school sued.

On April 19, most of the Supreme Court justices showed signs that they would be willing to allow funds to go this project, contending it is not specifically religious in nature and would therefore be discrimination based on religion. Only Justices Sonia Sotomayor and Ruth Bader Ginsburg indicated they felt it was a slippery slope that should not be crossed.

Sotomayor said she did not see how the state’s refusal to fund a playground violates the First Amendment. “No one is asking the church to change its beliefs,” she said. “If the issue is discrimination based on religion, what about the benefits that go to churches? There’s plenty of people who would think the tax exemption goes too far.”

When Ginsburg asked the church attorney if it could “demand as a matter of federal constitutional right that the playground be funded, even though they have an admission policy that favors members of their church?” he said, “Yes.”

Washington Post columnist Dana Milbank thinks the lawsuit is another attempt by conservatives to chisel away at the Establishment Clause of the First Amendment.

“It was about interest groups whose business model depends on perpetuating the culture wars trying to frighten people into thinking Christianity is under siege,” he wrote. “It was a springtime version of the annual ‘war on Christmas.'”

The case could lead to a major shift in the law on church schools and public funding. Lawmakers in many states have been pushing hard for vouchers and scholarships to allow public funds to support religious schools.

It was unclear from the argument whether the justices would rule broadly in favor of church schools or focus narrowly on the playground because it had nothing to do with worshiping or teaching religion.

It initially appeared that the case might resolve itself when Missouri’s new Republican governor, Eric Greitens, announced that the state would no longer deny grants to church schools, thereby making the case seemingly moot. But the justices proceeded as if the case were still under the previous state policy.

Freedom From Religion Foundation