Court backs re­li­gious school seek­ing public fund­ing

Faith groups: Play­ground up­grades ben­e­fit lo­cal chil­dren

The Washington Times Daily - - NATION - BY ALEX SWOYER

Key Supreme Court jus­tices sig­naled sym­pa­thy Wed­nes­day with a church that was de­nied public funds to help up­date a play­ground, in a ma­jor dis­crim­i­na­tion dis­pute that’s be­come one of the high­est­pro­file cases of the year.

Re­li­gious groups say the jus­tices could strike a blow for churches across the coun­try if they rule against Mis­souri’s law bar­ring any fund­ing from go­ing to re­li­gious or­ga­ni­za­tions, re­gard­less of the pur­pose of the money.

In the case be­fore the jus­tices, Trin­ity Lutheran Church had ap­plied for money from a state pro­gram that doles out money to help up­date chil­dren’s play­grounds. The state’s Depart­ment of Nat­u­ral Re­sources, cit­ing Mis­souri’s con­sti­tu­tion, said it was barred from pay­ing the money to a re­li­gious or­ga­ni­za­tion, even if the use weren’t re­li­gious in na­ture.

Jus­tices, in­clud­ing two of the court’s more lib­eral wing, pestered Mis­souri’s lawyer, ques­tion­ing just how far the state could go in re­fus­ing ba­sic ser­vices to re­li­gious groups that it gives to every­one else.

“What’s the dif­fer­ence?” said Jus­tice Stephen G. Breyer. “I’m ask­ing, does the Con­sti­tu­tion of the United States per­mit a state or a city to say, we give ev­ery­body in this city po­lice pro­tec­tion, but not churches? We give ev­ery­body fire pro­tec­tion, but let the church burn down.”

James Lay­ton, Mis­souri’s for­mer solic­i­tor gen­eral who de­fended the state in court Wed­nes­day, said those were dif­fer­ent cases, where the same pro­tec­tions ap­plied to every­one. He said that’s not the sit­u­a­tion with the play­ground money, where groups had to make safety changes to their play­grounds, then ap­ply for re­im­burse­ment in a se­lec­tive process.

“This is a very se­lec­tive pro­gram; very few in­sti­tu­tions get it,” Mr. Lay­ton said. “It is a publicly vis­i­ble man­i­fest de­mon­stra­tion of state en­dorse­ment.”

Jus­tice Elena Ka­gan coun­tered that it still seemed like sin­gling out re­li­gious groups for dis­parate treat­ment solely be­cause of their re­li­gious be­liefs.

“It’s a bur­den on con­sti­tu­tional rights, in other words, be­cause peo­ple of a cer­tain re­li­gious sta­tus are be­ing pre­vented from com­pet­ing in the same way ev­ery­body else is for a neu­tral ben­e­fit,” said Jus­tice Ka­gan.

Nearly 40 states have pro­hi­bi­tions sim­i­lar to Mis­souri’s ban on re­li­gious in­sti­tu­tions ap­ply­ing for govern­ment money. David A. Cort­man, a lawyer with Al­liance De­fend­ing Free­dom (ADF) who ar­gued the case for Trin­ity Lutheran, said the bans grew out of anti-Catholic sen­ti­ment in the late 1800s.

Jus­tice So­nia So­tomayor pep­pered Mr. Cort­man with ques­tions, say­ing that churches al­ready get spe­cial treat­ment un­der tax laws.

“What are we go­ing to end up with when sec­u­lar peo­ple say re­li­gious peo­ple are be­ing dis­crim­i­nated in fa­vor of and against us? If sta­tus should not be an ef­fect on free ex­er­cise, what are we go­ing to do with tax ben­e­fits?” she said.

Mr. Cort­man replied that it’s a bal­anc­ing act.

Jus­tice Neil M. Gor­such, who took the late Jus­tice An­tonin Scalia’s seat and has only been on the court for a week, has a record of sid­ing with re­li­gious prac­ti­tion­ers dur­ing his time on the 10th U.S. Cir­cuit Court of Ap­peals.

While he was ac­tive in pre­vi­ous ar­gu­ments this week, he was more re­served in Wed­nes­day’s case. He did prod Mr. Lay­ton about how a state goes about de­cid­ing what’s a gen­eral pro­gram where dis­crim­i­na­tion isn’t al­lowed ver­sus what’s a se­lec­tive pro­gram where dis­crim­i­na­tion is al­lowed.

“We don’t get a fine line,” Mr. Lay­ton ad­mit­ted.

Re­li­gious groups ral­lied out­side the court­room Wed­nes­day, say­ing the case will help de­cide how far states can go in tar­get­ing churches.

ADF spokes­woman Kerri Ku­pec said most of the chil­dren who at­tend Trin­ity Lutheran’s preschool don’t even go to church there, and the play­ground is also open to the com­mu­nity af­ter hours and on week­ends.

“So when the govern­ment dis­crim­i­nates against Trin­ity Lutheran and their kids, in this way, they’re ac­tu­ally hurt­ing the en­tire com­mu­nity around it,” she said. “A skinned knee hurts just as much on the grounds of a re­li­gious preschool as it does at a public or sec­u­lar in­sti­tu­tion.”

Mis­souri Repub­li­can Gov. Eric Gre­it­ens, who took of­fice in Jan­uary, re­versed the state’s pol­icy last week, say­ing the govern­ment shouldn’t be able to deny money to peo­ple of faith the funds if they’re mak­ing im­prove­ments to the com­mu­nity.

The Amer­i­can Civil Lib­er­ties Union (ACLU) said that made the case be­fore the Supreme Court moot be­cause the church will now get the re­lief it wanted.

But Trin­ity Lutheran told the jus­tices its case is still live. The gov­er­nor’s ac­tion was tem­po­rary, the church said, and there are al­ready rum­blings that the state Supreme Court would over­turn the new pol­icy and reim­pose the ban — send­ing the is­sue straight back to the fed­eral courts.

A de­ci­sion is likely to come at the end of Supreme Court term in June.

AS­SO­CI­ATED PRESS

Jus­tice Neil M. Gor­such’s first week hear­ing Supreme Court ar­gu­ments fea­tures a Mis­souri case where a church is seek­ing public fund­ing for a play­ground that can be used both by mem­bers’ chil­dren as well as other kids in the lo­cal com­mu­nity.

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