A playground separating church and state

Can a playground be a threat to the separation of church and state in America? Some people think so.

It all started when the State of Missouri wanted to protect children by offering to pay for resurfacing with recycled tires the playgrounds of nonprofit organizations. This seemed like a great idea. Not only did it protect children who would normally be falling on gravel or pavement, it also recycled old tires to good use.

One difficulty. Religious nonprofits need not apply because Missouri's state constitution has what is referred to as the Blaine Amendment, which prohibits the use of state funds for religious institutions. The Blaine Amendment was passed in 30-plus states in the 19th century by anti-Catholic forces who feared state funding of Catholic schools.

The exclusion of playgrounds owned by religious nonprofits seemed unfair to Trinity Lutheran Church, which operated a pre-school and daycare center. After all, its children also suffer cuts and bruises when they fall on the playground. Their parents also pay taxes. But Trinity argued not only was their exclusion from the program unfair, it was unconstitutional. They were being denied participation in the program simply because they were religious. This is discrimination prohibited by the free exercise clause of the First Amendment to the U.S. Constitution.

The strict separationists also cited the First Amendment. They asserted that if state money went to a religious organization even for something like resurfacing a playground, it would amount to an entanglement of church and state contrary to the Constitution.

Opponents of strict separation note that taken to its extreme, religious organizations would be denied police and fire protection and other essential government services.

When Trinity argued its case in lower courts, it lost and appealed to the U.S. Supreme Court. The justices decided 7-2 in favor of the church on June 26. It is significant that only two justices, Sonia Sotomayor and Ruth Bader Ginsburg, dissented. The likelihood of the decision being reversed is very low, especially if Trump is able to appoint additional judges to the Supreme Court. 

"This Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion," wrote the court in its decision. "It has remained a fundamental principle of this Court's free exercise jurisprudence that laws imposing 'special disabilities on the basis of … religious status' trigger the strictest scrutiny."

Trump's secretary of education, Betsy DeVos, who is a long-time supporter of school vouchers, cheered the decision. "We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation," she said in a statement.

School-voucher supporters hope that the decision will open the way for voucher-payments for religious schools.

Separationists expressed concern for the same reasons. "We worry about any incursion on the protections that the Establishment Clause gives for religious freedom, and this is a serious one," Richard B. Katskee, legal director for Americans United for Separation of Church and State, told The Washington Post.

The reality may be more complicated.

In a footnote to the decision, Chief Justice John Roberts tried to limit the scope of the decision: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination."

The footnote gave separationists hope that the court ruling would not be applied to vouchers for religious schools. But the authority of the footnote was weakened by the fact that two members of the majority (Clarence Thomas and Neil Gorsuch) did not support it.

In any case, only a day after the Supreme Court playground decision, the court acted on two other cases involving religious schools. These decisions may make the footnote moot.

The first case involved a local voucher program in Colorado that was available to both religious and private schools, although most of the private schools in the district were religious. The Colorado Supreme Court ruled against the program, but the U.S. Supreme Court told the court to reconsider based on its decision in the Trinity case.

In theory, the Colorado court could come to the same conclusion, but it is going to have to show how funding vouchers is different from funding playground resurfacing.

The second case came from New Mexico where secular textbooks were being loaned to students in both private and religious schools. The New Mexico Supreme Court struck down the program, but again the U.S. Supreme Court asked the court to take another look at the case.

By sending these cases back for reconsideration, the U.S. Supreme Court is saying that these cases are not the slam dunks the lower courts thought. The court has set the stage for more cases on funding of religious schools. It seems to hope that by requiring lower courts to grapple with the issues, the law will become clearer by the time it has to rule again.

Melissa Rogers, an expert on the First Amendment, explains, "The main opinion in the case, written by Chief Justice John Roberts, emphasizes that the focus should be on what entities do with government aid, not their religious character." An organization cannot be denied funding simply because it is religious. The court puts the stress on what the organization does rather than whether it is religious or not.

As a result, much of the argument in future cases may be over "secular purpose" of the funding. For example, the state clearly has an interest in the care, health, and secular education of children. Secular textbooks should easily pass muster, but anything that looks like religious indoctrination or worship would be a bridge too far. The hard case is funds like vouchers that are not segregated by purpose. 

Clever politicians and schools will need to find ways that allow religious schools to tout their secular purpose without compromising their religious mission.

On the other hand, government money always comes with strings attached. Catholic organizations have complained that sometimes these strings include violating Catholic teaching. If a religious organization does not like the stings, can it challenge them under the free exercise clause of the First Amendment? That was not decided in this case, but it will be undoubtedly be litigated in future cases.

[Jesuit Fr. Thomas Reese is a columnist for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church.]

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