Of gravel, playgrounds and religious freedoms

A Columbia church's lawsuit against the state of Missouri will be heard by the U.S. Supreme Court. The suit alleges the state discriminated against Trinity Lutheran in denying it a grant available to make play areas safer.
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A Columbia church's lawsuit against the state of Missouri will be heard by the U.S. Supreme Court. The suit alleges the state discriminated against Trinity Lutheran in denying it a grant available to make play areas safer.
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Government & Politics

Columbia church finds itself at center of U.S. Supreme Court squabble

By Rick Montgomery

rmontgomery@kcstar.com

October 19, 2016 06:12 PM

COLUMBIA

It started with pea gravel. Now it’s a lawsuit that the U.S. Supreme Court will hear to decide crucial questions about religion and government.

A Lutheran church in Columbia has challenged a Missouri decision denying a grant to its preschool, which sought to replace the gravel on its playground with softer, safer material.

To Missouri Attorney General Chris Koster, a candidate for governor, the case is about an unequivocal section in the state constitution that prevents tax dollars from being used to aid religious groups.

To Annette Kiehne, director of Trinity Lutheran Church’s Child Learning Center, the state’s refusal to help fund a safer playground is an unjustified deprival of a public service — especially given the church’s insistence that activity on the playground would not be religious in nature.

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“They’re just kids playing,” she said Wednesday above the din of the preschoolers’ squeals.

And to the high court, the suit known as Trinity Lutheran of Columbia v. Pauley could mean recasting America’s legal stance on the separation of church and state.

Church-related organizations can seek federal assistance for secular programs through the White House’s Office of Faith-Based and Neighborhood Partnerships. However, as many as 39 states have constitutional restrictions similar to Missouri’s when it comes to using public funds to benefit religious groups.

Justices earlier this year agreed to hear the case sometime during the term that began this month. But the hearing still hasn’t been scheduled, perhaps because a court seemingly eager to address arguments over religious freedoms would prefer that the late Justice Antonin Scalia’s vacancy be filled.

Meantime, Trinity Lutheran’s Kiehne wonders how youngsters swinging, sliding and spinning in a play space could have been excluded from a state program that cushions the ground with recycled tire scraps — based only on the preschool being run by a church.

While Scripture is cited in the hallways inside the learning center, “there are no religious aspects going on with this playground,” she said. “We do a lot of teaching of the Golden Rule: Treat others as you’d want people to treat you.”

The facts of the case are not in dispute:

▪ In 2012, the preschool applied for funds through the Missouri Department of Natural Resources’ scrap tire grant program. Supported by fees paid when new tires are sold, the program offers grants to buy shredded rubber for surfacing nonprofits’ playgrounds.

The logic: Tires stay out of landfills, and play areas get cushier.

▪ Program administrators, headed at the time by director Sara Parker Pauley, informed the church that its chances of obtaining funding were strong. The agency ranked Trinity Lutheran’s preschool in the top five of 44 nonprofit applicants submitting requests.

▪ Fourteen projects were approved. But Trinity Lutheran’s request was denied because a 1875 amendment to the Missouri Constitution states:

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

▪ Upon learning of the state’s decision, the legal action group Alliance Defending Freedom took up the lawsuit at no expense to the church.

A trial judge ruled against Trinity Lutheran, and the U.S. Court of Appeals for the 8th Circuit affirmed that decision by a 2-1 decision.

The question now before the U.S. Supreme Court is whether bans on funding religious groups in Missouri and many other states are in conflict with the U.S. Constitution’s guarantees of free speech, the rights of groups to practice their religion and equal protection under the law.

The church would need five of the eight sitting justices to rule in its favor in order to win. A 4-4 tie would allow the appellate court’s decision to stand.

Kansas City lawyer Mike Whitehead, who is working with the Alliance Defending Freedom in representing the church, said the state’s rejection of the grant application was akin to a public entity refusing to provide fire protection to houses of worship.

“It’s discriminatory,” he said. “These are secular benefits available to the citizens of Missouri” to make them safer.

But Daniel Mach of the American Civil Liberties Union said the state’s stance on not fostering in the establishment of religion reflected principles held dear by the nation’s founders.

A ruling in favor of Trinity Lutheran “could open the door to demands by houses of worship of all sorts for government cash grants,” said Mach, who directs the ACLU Program on Freedom of Religion and Belief. “A church has every right to make improvements to their property but not on the taxpayer’s dime.”

Mach noted that federal constitutional restrictions on government interference with religion already enables churches to avoid many taxes: “The church here wants to have its cake and eat it, too.”

A ruling favorable to the church also would raise practical conflicts between governments and religious organizations across the country, said Richard Katskee, legal director for Americans United for Separation of Church and State.

“Why did your church get money and my church didn’t?” said Katskee. “It creates at least the appearance of government favoritism of one institution over another.

“A church has to be left alone to decide its own theology. But when a group gets government money, it comes with strings attached.”

Though the case hasn’t yet drawn much national attention, some aspects of the debate have trickled into the campaign for Missouri attorney general.

The winner of the race could determine how the state will proceed should the Supreme Court wait until next year to hear arguments.

Koster’s petition to the high court suggests that state officials had little choice but to deny funds given the wording of the Missouri Constitution. But GOP candidate Josh Hawley filed a brief questioning that interpretation.

Hawley’s campaign declined to comment for this story. But his opponent, Democrat Teresa Hensley, said in an email to The Star:

“When it comes to using taxpayer funds to pay for projects at religious schools, regardless of your personal views on the issue, the law and state constitution are very clear: public money cannot be spent to pay for projects at religious schools.”

Alliance Defending Freedom counsel David Cortman said Hensley’s view conflicts with the state’s obligation to not discriminate based on a grant applicant’s religion.

“This isn’t even a question of treating a religion equally,” he said. “It’s treating a religion worse than anyone else.”

Cortman, who would argue the church’s case to the Supreme Court, already has notched one victory before the justices.

In 2015, he successfully defended the right of a small Presbyterian church in Arizona to display on public rights-of-way signs directing people to Sunday worship services.

The high court, citing no restrictions on political signs and other such displays, ruled 9-0 in that church’s favor.

So even if the Trinity Lutheran case is judged before a replacement for Scalia is seated, local lawyer Whitehead said he likes the church’s chances.

An 8-0 ruling “would be just fine with us,” he said.

Rick Montgomery: 816-234-4410, @rmontgomery_r