Religious discrimination in playground case no laughing matter

A bustling preschool playground tucked away in a small Missouri town is at the center of one of the most important religious freedom cases at the U.S. Supreme Court this term. But not for the reason you might think.

Trinity Lutheran Church of Columbia v. Comer, to be argued on Wednesday before the justices — including newly minted Justice Neil Gorsuch — isn’t about prayer, religious doctrine or any type of religious practice. The case is about whether the government can discriminate against the children who play on this playground — just because a religious organization owns it.

{mosads}That has been the argument of the state of Missouri’s Department of Natural Resources, whose officials insisted that the U.S. Constitution allows state governments to deny religious groups access to the same public benefits that others receive — solely because of their religious status. Missouri argued, in essence, for treating religious groups as second-class citizens, and in the process, it advocated for less-safe play spaces for kids.

The state operates a program that offers reimbursement grants to purchase rubberized playground surface material recycled from old tires. The program is a win-win for everyone: It prevents old tires from clogging landfills and polluting Missouri’s waterways, and it puts tire scraps to good use by converting them into a safe, cushy surface on which children can play.

Local governments, schools, and nonprofits are eligible to apply for the grants, but it’s no slam dunk. The application process is arduous, requiring detailed project plans, vendor quotes, media exposure, a recycling education plan and much more.

Trinity Lutheran Church of Columbia decided it was time to resurface its Learning Center playground, which is a hub of activity. It serves not only community children enrolled in the preschool program but also ones who drop by on evenings and weekends to enjoy the swings and slides. The hard, jagged pea gravel made an uninviting playground surface for little knees and elbows, so Trinity decided to pursue a safer surfacing material to cover its playground. In 2012, it applied for Missouri’s scrap tire grant reimbursement program.

The state ranks each applicant according to how well it fulfills each aspect of the application process. Trinity Lutheran’s application not only scored well, it ranked fifth out of 44 applicants. Considering the state provided partial reimbursements for 14 projects that year, Trinity clearly qualified for a grant award.

But instead of a grant award, Trinity received a denial notice.

Missouri officials stated that although the preschool qualified for the grant, it would not be awarded one because the Missouri constitution forbids public funds being given as “aid” to organizations owned or controlled by a religious organization.

The fault in that reasoning, however, is the scrap tire reimbursement grant program is not “aid” that furthers religion. Actually, it’s not state “aid” at all because the program is funded by a tax on tire purchases, so the fund is made up entirely of money from everyone who buys tires, including Trinity and its members. While the religious and non-religious both pay into the program, apparently only the non-religious can receive any benefit.

In addition, grant recipients have to pay for the scrap tire material up front. Only with proof of purchase can they receive the grant reimbursement for a portion of the project, thereby eliminating any risk that those funds could be diverted to any other use.

But even more importantly, the First Amendment forbids discrimination based on religious status. Missouri cannot “sort” its citizens by faith. The religious should not be forced to choose between their religious identity and equal participation in public life. Such religious discrimination has no place in a diverse, tolerant society.

If Missouri can exclude Trinity from a generally available public benefit just because of its religious status, then by logical extension governments could deny police or fire protection to a Jewish school, or refuse to repair roads and sidewalks in front of a Catholic hospital.

The safety of all children matters. Those who play on playgrounds owned by religious groups are just as deserving of safe spaces as those who play on playgrounds owned by the non-religious, especially when you consider that, in Trinity’s case, 90 percent of the neighborhood children who use the playground don’t even attend the church.

Everyone wants a government that is fair and evenhanded toward all. It’s time to scrap religious discrimination and make play fair again.

Christiana Holcomb (@ChristianaADF) is legal counsel with Alliance Defending Freedom, which represents Trinity Lutheran Church of Columbia.

The views expressed by contributors are their own and are not the views of The Hill.