In 2012, Trinity Lutheran Church in Columbia, Missouri, faced a problem: its playground was covered with pea gravel—coarse stone fragments that make for a perilous play surface.
Fortunately, Missouri’s Department of Natural Resources runs a grant program that reimburses non-profit organizations for installing playground surfaces made from recycled scrap tires. Hoping to defray the expense of resurfacing its playground, the church submitted an application.
Although the Department ranked Trinity Lutheran’s application fifth out of the 44 submissions it received and awarded 14 grants, it denied the church’s application. Its reasoning? A state constitutional provision—known as a Blaine Amendment—that bars religious institutions like Trinity Lutheran from receiving state funding.
Blaine amendments are the remnants of a wave of anti-Catholic sentiment that swept the nation during the nineteenth century. The original Blaine Amendment, named for Maine Senator James G. Blaine, was designed to protect the existing Protestant monopoly on schools by barring state funding of “sectarian” (i.e., Catholic) institutions. Though Senator Blaine’s amendment failed to gain the necessary votes in Congress, thirty-seven states incorporated similar language into their constitutions. Washington State was one of them.
Washington’s Blaine Amendment remains wholly intact; that is, unless Trinity Lutheran has its way in the Supreme Court. By the end of its term on June 30, the Court will very likely decide whether excluding religious institutions from a secular grant program under a state Blaine Amendment violates the U.S. Constitution.
Here, Trinity Lutheran contends that government should not be able to deprive religious institutions of the benefits it makes available to all. To do so would run afoul of the Constitution’s Equal Protection and Free Exercise clauses which, when read together, provide that states must generally treat religious individuals the same as they would treat any other individuals. When a state does subject a religious individual or entity to unequal treatment, it must provide an especially compelling reason for doing so.
The government’s rationale behind the grant restriction boils down to avoiding the establishment of a state religion. A decision in favor of Trinity Lutheran would compel taxpayers to fund improvements to church property. This arrangement, according to the Department, constitutes unlawful state funding of religion. Unlawful, that is, under the Supreme Court’s current interpretation of the Establishment Clause.
The government’s argument rests on a fundamental misreading of the Constitution. For decades, the Supreme Court has insisted that government must not only avoid favoring one religion over another, but avoid preferring religion over non-religion. Scholars have vigorously debated whether this principle accurately reflects the Establishment Clause’s meaning since 1947, when the Supreme Court handed down its misguided decision in Everson v. Board of Education.
Aside from the merits of either interpretation, the inescapable consequence of the Court’s interpretation pits the First Amendment’s two religious clauses against one another in case after case. Trinity Lutheran’s dispute provides yet another example of this unresolved tension.
It is highly unlikely that the Supreme Court will resolve the Free Exercise/Establishment Clause debate here. Nonetheless, Trinity Lutheran has offered the Court a ripe opportunity to chip away at—if not abolish altogether—the anti-religious legacy of state Blaine amendments.
That is, assuming the justices aren’t too chicken to play.
Christina Pesavento is a blog contributor from the “other” Washington (Washington, DC), where she works at a legal non-profit association. She previously served as a law clerk with the U.S. Senate Judiciary Committee and was president of the Federalist Society chapter at the American University Washington College of Law.
