Supreme Court case will test church-state separation over a playground spat

( An argument over playground surfacing made of scrap tires will come to a head soon as a pivotal church-state separation case, and is one that religious freedom advocates say may finally provide some relief from what they view as encroaching government hostility towards faith.

As reported by the Washington Times, the U.S. Supreme Court enjoined the battle after agreeing to hear Trinity Lutheran Church v. Pauley, a lawsuit filed by the church after the state of Missouri rejected an application for a grant to replace the preschool’s pebble playground with rubber that was repurposed from old tires.

The state has said the preschool is not eligible because it is operated by a church. State officials cited an 1875 amendment to the Missouri Constitution – called the Blaine Amendment – that prohibits use of public funds “in aid of any church.”

About 36 other states have similar amendments, the Times noted, but they “shouldn’t be applied in a way that would treat churches and religious organizations worse than everybody else simply because they’re a church,” Erik Stanley, senior counsel for the Alliance Defending Freedom, told the paper.

Last year the 8th Circuit Court of Appeals upheld a trial court’s previous ruling against Trinity Lutheran. However, if that is allowed to stand, then “it could spell disaster for all kinds of participation by churches and other religious groups in what are evenhanded government programs,” he said.

“Taken to the extreme, it could even mean that a state could justify not providing fire protection to a church,” Stanley added. “They could say, ‘That’s aid to a church. And so we’re not going to do that under our state constitutional provision.’”

In its appeal to the Supreme Court the church said that even though the preschool may indeed be a part of its ministry, the grant – and the playground – are for secular purposes only.

“Seeking to protect children from harm while they play tag and go down the slide is about as far from an ‘essentially religious endeavor’ as one can get,” the church argued in court filings.

Groups that promote strict separation of church and state are poised to become deeply involved in the case, fearing that justices might loosen a 2004 decision holding that Washington state had the right to exclude a college student who sought a divinity degree from its taxpayer-supported tuition assistance program.

“We were surprised that the Supreme Court took this case, and we are definitely concerned that the Supreme Court has taken this case,” Alex Luchenitser, associate legal director for Americans United for Separation of Church and State, told the Times. “It is possible that this case could erode state constitutional restrictions on the public funding of religious institutions.”

Constitutional scholars are also keeping watch on the case, the paper said. Many believe the case will be historic, however it is decided.

Ten other states have filed briefs in support of Trinity Lutheran, the Times said, stating that previous judicial rulings “arguably push ‘no aid’ into the realm of discrimination against religion.”

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