AU Files Court Brief In Mo. Church Playground Tax-Funding Case

Missouri is not obligated to give a grant to a church for the purpose of refurbishing its religious pre­school’s playground, Americans Uni­ted said in a recent friend-of-the-court brief.

The brief was filed in the case of Trinity Lutheran Church of Col­um­bia, Inc. v. Pauley and submitted to the Supreme Court in July by Americans United and seven allied groups.

In the brief, the organizations explained that Missouri’s decision to offer grants only to secular organizations is not unconstitutional. 

The Missouri Department of Natural Resources Solid Waste Management Program awards grants to qualifying organizations so that they may purchase recycled tire rubber, which is used to resurface playgrounds. In order to comply with the Anti-Aid Clause of the Missouri Constitution, the program does not award public funds to organizations owned or operated by “a church, sect, or denomination of religion.”

Trinity Lutheran Church in Colum­bia, which is affiliated with the conservative Lutheran Church-Missouri Synod, applied to participate in the grant program in early 2012 on behalf of a religious preschool it operates. In May 2012, its application was denied. The church, backed by Alliance Defending Freedom, filed suit against the state early in 2013, claiming that it was being discriminated against. 

A federal trial court ruled against the church, and the 8th U.S. Circuit Court of Appeals upheld the district court’s decision in May 2015. But in January 2016, the U.S. Supreme Court agreed to hear the case.

In their brief, Americans United and its allies asserted that the framers of the U.S. Constitution sought to prevent precisely this sort of government subsidizing of religion.

“The framers of the First Amendment and of the early state constitutions sought broadly to protect religion against the corrupting in­­fluences that could result from public funding – such as inciting unsavory competition for ever larger slices of governmental largesse, encouraging distortions of religious doctrine as churches try to make themselves more attractive to political decisionmakers, and engendering political divisiveness and strife along religious lines,” the brief states. “Just as importantly, the framers sought to protect citizens against what they identified as the particular tyranny of being taxed to support houses of worship and religious denominations whose beliefs one does not share.”

In a press statement, Barry W. Lynn, executive director of Americans United, said houses of worship should rely on their congregants, not taxpayers, for financial support.

“It is dismaying to see a house of worship demanding a handout from taxpayers,” Lynn asserted. “If Trinity Lutheran wants to build a new playground, it should do so with its own money.”

The groups that joined Americans United on the brief include Anti-Defamation League; Central Conference of American Rabbis; Interfaith Alliance Foundation; Hadassah, the Women’s Zionist Foundation of America; Jewish Social Policy Action Network; Union for Reform Judaism and Women of Reform Judaism.

The brief was prepared by Americans United Legal Director Richard B. Katskee, Americans United Associate Legal Director Alex J. Luchenitser, Andrew J. Pincus of Mayer Brown LLP in Washington, D.C., and the Yale Law School Supreme Court Clinic.

Americans United Madison Fellow Carmen Green also weighed in on this case in two posts for AU’s “Wall of Separation” blog. Green wrote that if Trinity Lutheran is successful, it could create a great deal of confusion and litigation.

“The result would be that the state would have to perfectly predict whether a religious organization could or could not receive a public grant for a particular purpose,” Green said. “If the state were wrong in either direction – either giving public money that gets used for a religious purpose or failing to give public money when it would have been used for a nonreligious purpose – expensive litigation would follow, which in many cases could not be resolved until a court had ruled on the Religion Clauses’ application in that particular scenario.”