Religious Liberty at the Supremes


A full Court of nine takes on anti-Catholic Blaine Amendments.

TrinityLutheran Church in Missouri.

TrinityLutheran Church in Missouri. PHOTO: ALAMY STOCK PHOTO

Can a church be cut out of a state funding program merely because it’s a church? That’s the question on Wednesday when the Supreme Court hears arguments that could determine whether state laws that discriminate against religious groups violate the First Amendment.

In 2012 Columbia, Missouri-based Trinity Lutheran Church applied to participate in the state’s Scrap Tire Grant Program, which gives money to schools or other groups that want to resurface playgrounds with recycled tires to provide a safer surface. The program is neutral and secular and provides around a dozen applicants with playground renovations each year.

The church wanted the new surface for the playground used by its preschool, but the Missouri Department of Natural Resources (DNR), which runs the program, rejected the application. In a letter to Trinity Lutheran, the DNR explained that “‘Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.’”

This language is known as the Blaine Amendment, one of many state laws passed amid a burst of anti-Catholic sentiment in the late 1800s to cut off public funds for religious schools. More recently, progressives have adopted Blaine Amendments to bar state money for religious organizations and block voucher programs that let parents choose religious schools for their children.

Trinity Lutheran sued in January 2013, noting that the laws violate the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” as well as the Constitution’s guarantee of equal protection. A federal judge dismissed the church’s claim and the Eighth Circuit Court of Appeals agreed, ruling that state money used to resurface a church playground was an improper payment to a religious organization.

Those opposed to the church receiving state money for its playground cite the Supreme Court’s 2004 decision in Locke v. Davey, in which the Justices ruled that a publicly funded scholarship program was not required to fund students seeking degrees in theology or religious studies. But unlike Locke, in which the public money was paying for the furtherance of Christian theology, the money applied for by Trinity Lutheran was for a neutral and nonreligious purpose.

By explicitly excluding the church preschool from a secular program because it is run by a religious organization, Missouri is discriminating in violation of the Constitution’s free exercise of religion clause. The Founders wanted religious groups treated equally and without government interference, not to have them discriminated against because of their religion.

Blaine Amendments have become a favorite weapon against school vouchers that threaten the public school monopoly. The Justices should make clear that using the amendments to exclude religious groups from public benefit programs violates the Constitution.

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