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’s Trinity Lutheran, victor in landmark case, back to ‘being a little church’

By Rick Montgomery

rmontgomery@kcstar.com

July 02, 2017 12:01 PM

The website of Trinity Lutheran Church in Columbia last week promoted Vacation Bible Study and the Sunday afternoon practices of the hand bell choir.

Strikingly, no mention was made of what many are calling a landmark U.S. Supreme Court decision June 26 on a discrimination case brought by Trinity Lutheran, a low-profile congregation of about 250 active members.

Five years ago, they just wanted to soften the church’s preschool playground with recycled rubber provided by a tax-funded program. The Missouri Department of Natural Resources denied their application on grounds that the state was barred from aiding religious groups. The high court ruled 7-2 on Trinity Lutheran’s side.

What the congregation didn’t seek was national publicity, and Trinity Lutheran fielded lots of it. The attention resulted in some heckling phone calls and hate mail from people opposed to the church’s challenge of a longstanding Missouri doctrine that prevented religious groups from receiving public aid.

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“All along they wanted to keep a low-key perspective and just continue being a little church,” said Erik Stanley of the Alliance Defending Freedom, an Arizona-based legal-action group that assists religious organizations. The case that came to be known as Trinity Lutheran v. Comer, Stanley said, “was not an overarching thing that consumed this church.”

With a sanctuary built in the early 1960s in a working-class neighborhood where churches at the time rose a few blocks from each other, Trinity Lutheran for the last generation has functioned as much as a preschool as a house of worship. As many as 85 children attend daily classes there, and most come from area households not affiliated with church membership.

At issue in the church’s lawsuit against the state of Missouri was the safety of its playground, which is covered with pea gravel that can cause children to slip and scrape their knees. After the state’s denial of a grant request set in motion the case’s ascent to the nation’s highest court, church officials deferred inquiring news media to the Alliance Defending Freedom and its Kansas City-area counsel, Mike Whitehead.

“Some pastors at other churches would’ve run to the microphone to grab that PR,” said Whitehead. “Not these people. They were not looking for a way to be politically active. I can tell you it was a very hard decision for Trinity Lutheran to bring a lawsuit against the state.”

Overseeing that decision was the chairman of the church’s board of trustees, Phil Glenn. He contacted the Alliance Defending Freedom for advice after receiving a letter from the Department of Natural Resources saying that the Trinity Lutheran’s religious status prevented it from receiving $20,000 available from the state’s scrap-tire program for resurfacing play areas of not-for-profit groups.

“Phil reached out to us and said, ‘This doesn’t sound right,’ ” said the alliance’s Stanley. “We took on their case because the facts were just too good.”

The state said in its letter to Trinity Lutheran that the church’s application ranked fifth among 44 organizations seeking grants from the scrap-tire program, which is funded from fees paid on the sale of new tires.

Glenn told The Star last week the playground is open to families throughout the neighborhood.

“It was never about the money the grant would have provided. It’s about the principle,” he said in an email. “Christian organizations are no different than other organizations, and we have the same constitutional rights.”

The church argued that religion was not practiced on its preschool playground. Advocates of decades-old “no-aid clauses,” which restrict more than 30 state governments from directing tax money to religious groups, countered that the separation of church and state had primacy over one playground’s surfacing needs.

In her dissent from the Supreme Court’s majority opinion, Justice Sonia Sotomayor wrote: “The Church’s playground surface — like a Sunday School room’s walls or the sanctuary’s pews — are integrated with and integral to its religious mission.”

Alex Luchenitser, associate legal director with Americans United for Separation of Church and State, agreed with Sotomayor’s take. He voiced concern that religious schools will cite the ruling in pressing for more public aid.

“Supporters of school vouchers are going to try to use this decision, you can bet,” Luchenitser said.

Scholars reviewing the decision note that Chief Justice John Roberts, who wrote for the majority, specified in a footnote that the ruling applied narrowly to “expressed discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

For now, the separation of church and state appears to be a case-by-case question, said University of Missouri-Kansas City law professor Allen Rostron.

“Some people are saying that the wall between church and state is really crumbling at this point,” Rostron said. Others say that “even if the Supreme Court never had a case quite like this before, the result isn’t too surprising,” he said.

In any event, members of Trinity Lutheran were content to stay as far removed from heated politics as they could.

“We weren’t asking for special treatment,” wrote Annette Kiehne, director of the church’s Child Learning Center, in an email to The Star. “We just asked to not be treated worse than everyone else.”

Missouri Gov. Eric Greitens wasn’t so inclined to avoid political gamesmanship.

Just days before the Supreme Court was to hear oral arguments in April, Greitens announced that the state’s policy denying taxpayer help to religious groups was “just wrong. So today we are changing that prejudiced policy.”

His declaration sent lawyers for Trinity Lutheran scrambling to keep their case alive: Could the governor’s statement render moot the church’s arguments?

“It could’ve been disastrous for us,” said Whitehead. “One of those near-death experiences.”

In the end, the case made its way into history books. And Trinity Lutheran today is back to being just another church on a corner.

Rick Montgomery: 816-234-4410, @rmontgomery_r