Playground case touches on separation of church and state

But the parties still want this case to produce a decision-and it became clear on Wednesday that the justices are eager to rule, as well.

Several justices appeared skeptical of Missouri's rationale for denying a church preschool access to a reimbursement program meant to encourage safety updates to playground surfaces.

But he seemed to face an uphill battle in defending the exclusion of church groups from a program with only a secular goal - making playgrounds safer - and for which Trinity would have been otherwise approved. "The children who play on the Trinity Lutheran preschool playground are just as important as any other children in the state of Missouri, and the state shouldn't be discriminating against them just because they attend a preschool that's run by a church".

The First Amendment declares, among other things, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". He failed at the federal level, but many states took up the cause.

"It's a hard issue", Justice Elena Kagan said, also calling the case a "clear burden on a constitutional right".

"You have a playground", she said.

"I hope that the media, and there's a lot of media here today", Nance said, "will recognize that this is about our first amendment rights to practice our faith and not be singled out and treated poorly or worse".

Justice Sotomayor noted that for more than a century most states, like Missouri, have barred money for religious institutions.

"We aren't asking for special treatment".

Justices were particularly skeptical of arguments made by former Missouri Solicitor General James Layton that the playground resurfacing program is different than a broader public safety program because it's selective, requiring the state to pick winners and losers, rather than universally available. And nothing about the tire-scrap programme has anything to do with advancing religion, Mr Cortman insisted: "what we're talking about is just a surface".

When the government refuses to allow religious organizations to apply for grants funded through taxpayers' money, by contrast, it is in no way discriminating against any religious group.

Ginsburg pointed to court precedent from 1947.

If a church receives a government grant to improve its playground, then it doesn't have to use any money donated by its members to do it. Nearly 40 other states have similar provisions that could be affected if the Court rules in favor of the church. Justice Anthony M. Kennedy asked whether religious schools and colleges in California could see state funds on an equal basis to make their buildings "earthquake proof". On Wednesday, he suggested it might be easier for the court to draw a bright line in favor of religion.

The state said its decision not to give the church any money was based on a provision of the Missouri Constitution that explicitly prohibits using public money to aid a religious institution.

If your heart goes out to religious groups denied state aid under this prohibition, take comfort in the fact that the governor of Missouri actually reversed it last Thursday.

Justice Sotomayor pressed Cortman to explain how the church's free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface. Scalia and Justice Clarence Thomas were in dissent.

"Missouri's express discrimination against religion should be declared unconstitutional", the brief said. It also guarantees religion can be fully exercised. Cortman and the alliance are providing the legal support for Trinity Lutheran.

Religious freedom expert Gregory Lipper believes that a ruling in favor of the church could produce a slippery slope. These provisions forbid the use of any tax money to support churches or church schools.

On the eve of the Supreme Court hearing, oral arguments on both sides have responded to the Court's request, saying the case must still be resolved permanently.

Citing discrimination, the church sued the state, and although it lost in the lower courts, it is now looking for a SCOTUS ruling that would ensure that schools run by churches can not be excluded from government programs providing assistance to non-profit organizations. Chief Justice John Roberts and Justice Samuel Alito vigorously defended Trinity Lutheran's right to the funds, and Justice Anthony Kennedy appeared very troubled by the Missouri rule.

  • Archie Newman