How A Dispute Over Recycled Tires In Missouri Could Damage The Church-State Wall

The incoming administration of President-elect Donald J. Trump could do some serious damage to separation of church and state – and it might get some help from the U.S. Supreme Court.

A pending case from Missouri could have church-state separation ramifications across the nation. The case was the focus of a St. Louis Post-Dispatch story on Monday, which did a good job explaining all that is at stake.

Trinity Lutheran Church in Columbia sued the state’s Department of Natural Resources after the agency denied the church’s request to participate in a program that provides funding to purchase scrap-tire materials for the resurfacing of playgrounds. Trinity wanted a state grant to resurface the playground of the church’s religious preschool.

The program typically provides competitive grants to public schools and non-profits. The state agency rejected Trinity’s request on the grounds that doling out tax dollars to a religious organization would violate the state’s constitution, which states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion…”

Two lower federal courts have upheld Missouri’s decision, holding that Missouri’s “No-Aid Clause” prohibits churches from participating in the  program and that the exclusion of religious entities did not violate the U.S. Constitution.

The church, which is being represented by Religious Right legal group Alliance Defending Freedom, appealed. The U.S. Supreme Court agreed to hear the case, known as Trinity Lutheran Church of Columbia, Inc. v. Pauley. Arguments have not yet been scheduled but will probably occur this spring.

Americans United filed friend-of-the-court briefs with both the U.S. Court of Appeals for the Eighth Circuit and the U.S. Supreme Court in support of Missouri’s policy. Our most recent brief with the high court, filed in July 2016, notes the high court’s decision could affect similar no-aid provisions in the constitutions of nearly 40 other states. A broad ruling by the Supreme Court could endanger them all.

Attorney Carmen Green, AU’s Madison Fellow, previously noted on our “Wall of Separation” blog that the Religious Right is aiming to undermine a 2004 Supreme Court decision, Locke v. Davey, “a pillar of religious liberty jurisprudence because it upheld the state of Washington’s ‘no-aid’ clause, which is quite similar to Missouri’s.”

Missouri taxpayers should not pay to resurface Trinity Lutheran Church's playground. (photo by Beatriz Costa-Lima)

Americans United has been working hard to explain why these no-aid amendments are important. They don’t just prevent people from being forced to support religion, but they also protect the integrity of churches.

“People who say ‘Well, this is a general program and churches should get a slice of it like anyone else’ are missing the basic principle,” Richard Katskee, AU’s legal director, told the Post-Dispatch. “The states are trying to protect religious freedom by making sure government and religion don’t get mixed up with each other. Money going to churches corrupts churches. The churches start pandering to the people giving out the money.”

The Post-Dispatch notes that Missouri lawmakers have tried to amend the constitution to repeal the “no-aid” clause, but have not been successful. (In fact, voters in several states, most recently in Oklahoma, have voted down efforts to remove these amendments.)

Further complicating matters, the state’s new attorney general, Republican Josh Hawley, has said his Democratic predecessor was wrong to defend the state’s case.

“I can tell you this is a vital case for all people of faith in Missouri,” said Hawley. “(No-aid clauses) cannot be allowed to trump the First Amendment.”

Due to previous private practice work he’s conducted with the plaintiffs, Hawley recused himself and appointed an assistant attorney general to lead the case. By the time the matter gets heard by the high court, the bench likely will be back up to nine justices, which is another wildcard – especially when you consider that Trump has vowed to put a justice in the mold of Antonin Scalia on the court.

Keep your eye on this case. It could gravely harm church-state separation.