Trinity Lutheran Church in Columbia, Missouri recently applied for State funds to implement a rubber surface treatment for a playground at its Learning Center. Apparently, the State has a ranking process for such applications, with high ranks resulting in approval. Despite the church Learning Center’s highly ranked application, the State refused the grant because of the “Separation of Church and State” provision of the constitution that prevents State funds from benefiting churches.
Missouri nonprofits may seek funding support from the State, in order to make playgrounds more safe by applying a proven ground level treatment of tire material converted to rubber playing surfaces, which serve as shock absorbers and cushion for accidental falls.
Currently, around 35 U.S. States have similar provisions in their state constitutions.
Conventional wisdom might suggest that child safety is a matter of State concern, whether a facility is owned by a church or not. Perhaps there should be an exceptional provision for fund applications are not directly related to religiosity; applications that deal primarily with the safety of human beings, especially children, whose well-being can be positively influenced via preventative measures.
Ironically, the safety of rubber mulch turf and crumb rubber turf has been debated as particles disperse when the turf is impacted (video). Though it is not yet publicly specified, hopefully the playground upgrade will implement a rubber turfing method that is not in question. Based on current research, it would seem that the type of flooring used in world class gyms beneath gymnastic apparatuses (which may be combinations of springs and mats) based on impact force potential, are a better choice than loose rubber fibers.
Trinity Lutheran church has already challenged the application refusal. Their case failed at the District level, but not unanimously, in the 8th Circuit U.S. Court of Appeals where the case was heard by a three-judge panel. One of the judges, Justice Raymond Gruender wrote in a dissent of the ruling that “Locke did not leave states with unfettered discretion to exclude the religious from generally available public benefits… the disfavor of religion here is more pronounced than in Locke… [and] Schoolchildren playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”
The Supreme Court has agreed to hear the case this week (Friday) and rule on arguments in March or April. It will re-visit when and if states can or cannot provide aid to religious institutions.
If the Supreme Court overturns the District ruling, this could be among the most significant rulings of the decade. It speaks to the diversity of situations that have many variables, including a church playground, which is not a “Bible class” or a religious event per-se, but which happens to sit on property owned by a church – property that needs to be safety code compliant just like any other community space.
A church might not be able to apply State funding to religious paraphernalia including doctrinal books or Bibles; however, a playground upgrade to reduce possible physical harm, seems like a State safety code adjustment, just as adding a ramp to an entrance would bring a building into compliance with handicap accessibility.
In Locke v. Davey (2004), the Supreme Court ruled under the auspices of Chief Justice William Rehnquist, that Washington State was not unjustified in its refusal of a State scholarship to a student studying theology at a private, Christian school. Students enrolled in other non-religious degree programs remained eligible for State scholarships.
The essential ruling in Locke v. Davey was that States were not obliged to fund parochial education including courses of training for clergy.
The pending ruling will determine whether this precedential case applies to State funding for other types of purposes directed by religious orders – including an application of tire scraps that could prevent injury to children at a playground – which in this case is open to children who are not members of the church, thus it is a community resource, which further adds to its significance and justification for safety upgrade funding.
Carl Esbeck, a religious freedom lawyer at the University of Missouri School of Law said that a case like this has not been in the courts for about a dozen years. “The Trinity Lutheran Church case is important because it’s going to resolve whether Locke [v. Davey] should be read narrowly or broadly… If you care about religious liberty, you want Locke to be read narrowly.”
Esbeck previously filed an amicus brief on behalf of the church in the lower court. An amicus (curiae) brief (literally, a friend of the court) aims to ostensibly suggest a rationale consistent with the petitioner’s own views concerning the potential ruling. Such briefs are common to cases deciding matters of broad public interest; such as civil rights cases.
An amicus (curiae) brief (literally, a friend of the court) is a petition to the court for permission to file a brief on behalf of a party (in this case, the Trinity Lutheran Church). The petition is made by a person (usually an attorney acting pro bono – in this case, Esbeck) or the government with “strong interest in or views on the subject matter of an action, … who must not be a party to the case or an attorney on the case, but who must have knowledge or a perspective that would make her or his views of value to the court.”