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Playground Fight Ends at Supreme Court

June 27, 2017 - 12:22pm CDT

Smoke billowed from the doors as the firefighters jogged into the church, then again as they came back out into the snow.

“It’s the big table at the front. They had a thing plugged in up there; looks like the cord shorted out.”

“Like a bunch of little people?” the Captian asked. “Yeah. And animals.”

“Okay, we have to hold up. Hold up!” The Captain answered the looks from his firefighters: “That’s a crèche. A nativity scene. And it’s on the church altar. We can’t spend public resources in aid of religion….”

Thankfully, the Supreme Court yesterday poured cold water on such a conception of the separation between church and state.

Trinity Lutheran Church operates a preschool in Boone County, Missouri. The state, to encourage tire recycling and improve safety for children, gives grants for resurfacing playgrounds with rubber made from ground-up old tires. Trinity Lutheran applied for the program and would have received a $20,000 grant, except that the state refused to give the grant to churches.

Yesterday, the Supreme Court ruled in favor of Trinity Lutheran. Six justices signed the Court’s majority opinion, which concluded that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”

In all, seven justices sided with the Church, including appointees of Presidents Reagan, Bush (41), Clinton, Bush (43), Obama, and Trump. Only Justices Ginsburg and Sotomayor dissented.

The case means that government cannot deny equal treatment to religious institutions or religious people based simply on the fact that they are religious. The First Amendment protects religious liberty in two ways: It denies government any power to establish a state religion (the Establishment Clause) and it denies government any power to prohibit the free exercise of religion (the Free Exercise Clause).* The decision in Trinity Lutheran makes clear that providing fire protection or playground resurfacing grants to churches is not only not a violation of the Establishment Clause—to deny these things to churches is a violation of the Free Exercise Clause.

*Of course, the First Amendment originally limited only the power of the federal government; the text begins, “Congress shall make no law….” Later, the Fourteenth Amendment extended federal constitutional protections into the states, but without the specific enumerations of rights. Judges eventually determined to understand the meaning of the Fourteenth Amendment by looking back at the original Bill of Rights and “incorporating” most of those rights protections, through the Fourteenth Amendment, against the states. Thus “Congress shall make no law” became something like “the federal, state, or local governments shall make no law.” A powerful critique of incorporating the Establishment Clause against the states is found in “The Supreme Court v. The Constitution of the United States of America” by Michael Uhlmann.