Religious Discrimination Case Goes to SCOTUS: Will Religious Nonprofits Be Treated Fairly?

James Gottry | April 18, 2017 | 9:40am EDT
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Ground-up recycled tire crumbs cover this playground behind the K-2nd grade elementary Dickerson School in Chester, N.J. (AP Photo)

Playgrounds are for children who exhaust every drop of available energy earnestly traversing the monkey bars, unabashedly whirling round the merry-go-round, and bravely scaling its framework (both on structures intended for climbing, as well as those that are simply conformable to it).

Playgrounds are also for parents and caregivers who release their charges to a world of sensory engagement, while themselves enjoying perhaps a moment of somewhat-solitary reflection or the rare opportunity to converse—even momentarily—with another adult.

Playgrounds are for the elderly men and women who shuffle down to a neighborhood park to sit on a bench and listen to the melodic sounds of children’s laughter. (Incidentally, there are even playgrounds designed for the seniors themselves.)

And aside from these practical benefits of playgrounds, they function as a sort of social hub, a physical connecting point where diverse members of the community come together. In The New Yorker, Emily Raboteau describes it this way:

In the playgrounds with my kids ... I talk with people I would otherwise never have spoken to. A Hasidic mother of six, a decade younger than I am. A teen-age mom a decade younger than her. A Trinidadian nanny with a talent for Sudoku puzzles. An out-of-work opera singer, father to twins. A foster parent peddling The Watchtower.

Playgrounds are for the community and, in a very real sense, they build community.

From community playground to High Court petitioner

On Wednesday, the U.S. Supreme Court will decide what to do about a small playground at a small church in a small Missouri city. The case itself is anything but small; one New York Times reporter referred to Trinity Lutheran Church of Columbia v. Comer as “the term’s remaining marquee case,” and its implications could reverberate throughout the country.

Trinity Lutheran Church is going before the Supreme Court for one reason: It wants Missouri to play fair on the playground. Missouri is going before the Supreme Court for one reason: Its problematic implementation of the Missouri Scrap Tire Grant Program.

Initially, the state’s intentions—by all indications—were commendable. As I’ve written previously, Missouri officials instituted the scrap tire program to increase playground safety. It is an admirable goal—emergency departments treat more than 200,000 children for playground-related injuries every year, and 20,000 of those children suffer traumatic brain injuries. Through the program, the state reimbursed grant recipients for rubberized surface material they purchased for the playgrounds. In addition to making playgrounds safer for children, the program benefited the environment because the surface material is manufactured from recycled tires, thereby reducing the number of tires in landfills. Thus, state officials devised a way to simultaneously enrich its communities, protect its children, and protect the environment. Everyone wins, or so it seemed.

What made Missouri’s efforts to better its communities so counterproductive, however, was its unwillingness to treat all playgrounds—and therefore all community members—equally. Specifically, the state excluded playgrounds at religious nonprofits from the program. As a result, Trinity Lutheran’s preschool, called The Learning Center, was denied one of the 14 grants awarded in the year it applied, even though its application was ranked fifth out of the 44 applications received that year.

The state constitution prohibits aid to religion, and officials apparently concluded that reimbursing religious nonprofits for rubber playground surfaces was the functional equivalent of funding a fervent altar call or financing a university student’s pursuit of a devotional theology degree. Most of the kids on the jungle gym could easily recognize the difference between a rubber landing and a heavenly rising, but unfortunately, the U.S. Court of Appeals for the 8th Circuit agreed with Missouri. And now the Supreme Court is set to decide whether Missouri’s state establishment clause forbids it from offering neutrally available public benefits—which include benefits like police and fire services—to religious groups.

Discrimination against religious nonprofits hurts the community

Even if the heavy-handed discrimination Missouri displayed toward religion and religious entities was justified (and it most certainly was not), the facts demonstrate that by its actions the state was punishing all community members, not just religious ones.

First, while The Learning Center is a program of the church, it overwhelmingly serves community members who are not church members. Indeed, more than 90 percent of the children enrolled at the preschool do not attend Trinity Lutheran, but they are equally disadvantaged by the state’s exclusion of religious nonprofits.

Second, The Learning Center has an “open gate” policy, which means the playground is available for use by an even broader cross section of the community after hours and on weekends. Those community members, however, are prevented from enjoying the safe surface present at many other community playgrounds, simply because the community playground they bring their children to is located at a religious nonprofit.

Third, discrimination against religious nonprofits is, in and of itself, bad for the community. More than half of the 20 largest charities in the country were founded on religious principles, and by religious organizations or individuals, and those charities provide vital services to the community. Punishing these nonprofits, or depriving them of an equal playing field when it comes to neutrally available public benefits, effectively punishes the communities they serve.

Missouri officials should have embraced a spirit of fair play and enabled playgrounds to bring the community together. Here’s hoping the Supreme Court shows everyone the beauty of the playground.

James Gottry is legal counsel with Alliance Defending Freedom, which represents Trinity Lutheran Church of Columbia.


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