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Arguing Over The Division of Church And State

— April 21, 2017

Trinity Lutheran Church applied for a state funded grant and opened an issue regarding the division of church and state.

Trinity Lutheran Church in Columbia, Missouri, applied for a state funded grant that supports rubberized playground coverings created from tires in 2012 and opened an in depth issue regarding the division of church and state.  The State of Missouri turned down the church’s application due to a provision in the state Constitution that says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”  So, the church took the matter to court.  Trinity lost first in federal district court, and again in the 8th U.S. Circuit Court of Appeals.  The district court’s ruling was based in part on a 2004 Supreme Court decision in Locke v. Davey, in which it was determined the state of Washington was within its rights to deny scholarship funding to a student of “devotional theology.”  However, the church argued that the rubber covering is for the practicality of all preschoolers’ safety, a secular concern.  

Playground raises issues regarding the division of church and state
Image Courtesy of The Washington Times

Jefferson City attorney James Layton represented the state.  He claimed that under guidelines concerning the division of church and state, the state of Missouri does not have to fund religious endeavors and stated“writing a check that says ‘payable to Trinity Lutheran Church’ ought to be on the other side of the line”, referencing the division of church and state.

David A. Cortman, a lawyer for the conservative group Alliance Defending Freedom, defended the secular notion. “All we’re talking about is . . . a safer surface on the playground for when kids play,” he said, adding, “That doesn’t enable any religious activity.”

Justice Elena Kagan challenged Layton as well. “It’s a fraught issue. It’s a hard issue  It’s an issue on which I — I guess I’m going to say nobody is completely sure that they have it right, ”  she said, adding on Wednesday, addressing Layton directly, “You’re depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.” She said the state’s interests “have to rise to an extremely high level.” Judge Stephen G. Breyer agreed, asking, “Does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection but not churches? We give everybody fire protection, but let the church burn down. We give everybody public health protection, but not a church.” Justice Samuel Alito went on to list various federal programs that contribute to safety programs for religious institutions.  

Playground raises issues regarding the division of church and state
Image Courtesy of The Harlan Institute

Not everyone opposed Layton, however.  Justice Sonia Sotomayor agreed with him regarding the fact that the Missouri provision he references does not interfere with religious practices, but rather limits state funding to such practices.  Ironically, Missouri Governor Eric Greitens recently announced he would end the policy against grants to religious institutions, reversing the regulations that denied Trinity’s application in the first place and making churches now eligible to participate. Both sides told the Supreme Court that his decision doesn’t eliminate the current case’s issue, however, since the issue could arise again in the future.  And, the case is essentially “grandfathered” and tied to the old system.  

By the end of the argument it seemed as if the majority would rule in favor of churches when programs are generally secular in nature and an issue regarding health and safety is applicable to the general public.


Justices express sympathy with Missouri church at Supreme Court hearing

Justices appear sympathetic to Missouri church seeking playground improvements

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