Gorsuch Gets into the Swing with Playground Case

Gorsuch Gets into the Swing with Playground Case

April 19, 2017

What does a children's playground have to do with the Supreme Court? A lot, starting today. That's when the justices -- including the bench's newest member, Neil Gorsuch -- heard oral arguments in a case of religious discrimination against Missouri's Trinity Lutheran Church. Like a lot of churches in the area, Trinity has an adjacent playground that needed refurbishing. So, the staff applied for a state grant through Missouri's Scrap Tire Grant Program which helps reimburse groups for installing rubber safety flooring from recycled tires. In an odd twist, state officials denied Trinity's request "even though the Missouri Department of Natural Resources ranked its application fifth out of the 44 submitted."

When the church inquired as to why they were turned down, they were told the state constitution barred the "public treasury" from aiding "any church, section, or denomination of religion." That hardly seemed fair to the congregation, whose children at the daycare and preschool need just as much outdoor padding as others. "A rubber playground surfaces accomplishes the state's purposes whether it cushions the fall of the pious or the profane," Alliance Defending Freedom (ADF) argued in its opening brief to the U.S. Supreme Court. "The state's categorical exclusion of religious daycare centers and preschools from the [program] is discrimination based on religious status, and that violates the First Amendment," ADF Senior Counsel David Cortman told reporters. Being neutral, he went on, "doesn't mean treating religious organizations worse than everyone else." And if the government can block this benefit, what's next? "[I]f a little girl is hurt on Trinity's playground, can the county hospital send an ambulance? Or if the city provides fire extinguishers to all preschools, can it give some to Trinity?"

Alan Sears echoed that sentiment. "The obvious solution to this... is neutrality," he writes. "Real neutrality. The government shouldn't give a school a grant it hasn't earned simply because it's church-owned -- but neither should it withhold that same grant when the school has earned it, simply because the school is owned by the church."

We agree, which is why FRC filed a brief with our friends at the Christian Legal Society, the Anglican Church of North America, the Christian Medical Association, National Religious Broadcasters, and the Queens Federation of Churches asking the Court to stop the government's punishment of faith-based groups. Our own Travis Weber, who spoke at a press conference after attending the oral arguments, was upbeat. "After listening to today's proceedings, I am hopeful, with the recent addition of Justice Gorsuch, that the Court will rule on the side of religious liberty, as clearly protected by the Constitution. Justice Gorsuch's presence will provide a welcome originalist voice in not just the Trinity Lutheran case but plenty of pivotal cases in the decades to come." Our own Travis Weber was inside the Court for oral arguments and was encouraged by what he heard:

"The majority of the justices clearly weren't buying the state's arguments. A full seven of them appeared skeptical of arguments trying to defend the discrimination against the church. Only Justice Ginsburg was silent when the state's attorney argued, and it was tougher to tell how Justice Sotomayor will view this case, but all the others appear as though they will side with the church. Even Justice Breyer asked whether we should just 'let the church burn down' if states can deny public safety benefits to churches, and whether we should just let children 'get tetanus' or 'break a leg' on unsafe facilities.

When Missouri's counsel tried to argue that giving the church money was constitutionally problematic because the grants rewarded the recipients to publicly proclaim they received them (and this entangled the government with religion), Justice Kennedy asked whether a church would be free to say it was 'delighted that it has fire protection.' Everyone got the point. Justice Alito pointed out that certain facilities may receive government money to fortify themselves against terrorist attacks and asked whether the government should tell religiously affiliated facilities to fend for themselves. By the end of the argument, I think everyone saw the silliness of treating religious organizations differently in the public square just because they are religious."

It's time to level the playing field -- and the playground -- for every group.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

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