When is a church activity "secular"?

[9-10ths_Penguin]

A church activity is secular when it is indistinguishable from the same activity done by a non-religious group.

In Missouri, daycares run by religious organizations are exempt from licensing requirements and follow separate rules from licensed daycares, so this activity would be distinguishable from the same activity being done by a non-religious group... if only for the fact that if a non-religious unlicensed daycare tried to operate in the open, it would be shut down by the state.

 

[bobhikes]

In Missouri, daycares run by religious organizations are exempt from licensing requirements and follow separate rules from licensed daycares, so this activity would be distinguishable from the same activity being done by a non-religious group... if only for the fact that if a non-religious unlicensed daycare tried to operate in the open, it would be shut down by the state.

Which has no bearing on Usage of the playground.

 

[9-10ths_Penguin]

Which has no bearing on Usage of the playground.

Come again? It's the daycare's playground.

 

[Willamena]

In Missouri, daycares run by religious organizations are exempt from licensing requirements and follow separate rules from licensed daycares, so this activity would be distinguishable from the same activity being done by a non-religious group... if only for the fact that if a non-religious unlicensed daycare tried to operate in the open, it would be shut down by the state.

...Which could fuel the Trinity Lutheran church arguments. (edited)

 

[Nous]

If the daycare is truly non-sectarian in all ways I have no problem with them getting state help in improving their playground. If such is the case, and there is no commingling of funds, there is no violation of the state constitution, at lest in my view.

(1) The daycare center itself obviously isn't “nonsectarian in all ways”. However, it would seem to be difficult to argue that its playground is used for religious purposes.

(2) An organization does not need to be “nonsectarian in all ways” in order to prevail in a challenge to a state policy that specifically uses classifications on the basis of religion in determining who can receive a grant that all other nonprofits organizations are allowed to receive. A state policy using such classification certainly should pass strict scrutiny, which this policy doesn't.

This case is very similar to Good News Club v. Milford Central School (2001) There, a NY school district enacted a policy that allowed district residents to use its building after school for, inter alia, instruction in education and social, civic, recreational, and entertainment uses pertaining to the community welfare. When the Good News Club, a private Christian organization for children, submitted a request to hold its weekly meetings at the school, Milford denied the request on the grounds that it was equivalent to a religious service. The Court held this denial to violate the club's First Amendment Free Speech rights (as Milford denied the request on the basis of the club's viewpoint), and that allowing the club to use the building did not violate the Establishment Clause--thus framing the certified question in Trinity Lutheran in an analogous way.

The Missouri policy employed classifications on the basis of religion in determining who could receive a grant for a safer playground surface. The grant was open to all non-profit organizations except religious ones. There is no compelling governmental interest in denying religious nonprofit organizations such a grant for a playground surface. The purpose of the program is to reduce the number of tires in landfills and to make playgrounds safer for kids. The purpose of the program is served perfectly by allowing religious nonprofits to receive the grants.

 

[Nous]

In Missouri, daycares run by religious organizations are exempt from licensing requirements and follow separate rules from licensed daycares, so this activity would be distinguishable from the same activity being done by a non-religious group... if only for the fact that if a non-religious unlicensed daycare tried to operate in the open, it would be shut down by the state.

The Trinity Lutheran Learning Center is a licensed daycare/preschool center.

"Trinity Church operates on its church premises a licensed preschool and daycare called the Learning Center." http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf

 

[Skwim]

From the preschool's website

Trinity Preschool does not discriminate in its admission or dismissal policies on the basis of race, gender, religion, ethnicity, national origin, or source of payment. We accept both MN and ND child care assistance.

You post in #30 Also indicates that it is ok that all public schools close their parks during school time and my post in #34 indicates this is probably for security reasons and mandated by the state. Unless you can prove otherwise.

.......I give up

.​

 

[Skwim]

That's not an issue of religion,

No at all sure what you have in mind when you say "not an issue of religion." But it is an issue because of religion.

The playground is on church property, owned by the church, and administered by the church, and it's being denied government funding because of just that.

but of safety.

Prove it. Show us where in the brief that was filed the church does not allow the public to use the park during certain hours because of safety reasons. Because that---the disallow of public use--is what my post is about.

.

 

[Nous]

The Missouri Constitution has a provision stating that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion . . .” This provision was the basis of the state's (now rescinded) policy that disallowed such grants to religious nonprofits except under certain conditions, among these, that the “grant will be used for secular (separate from religion; not spiritual) purposes rather than for sectarian (denominational, devoted to a sect) purposes.”

My bad. The policy had 3 conditions, all of which had to be met, the first one being that "the applicant is not owned or controlled by a church, sect or denomination of religions and the grant would not directly aid any church, sect or denomination of religion." http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranPetitionersBrief.pdf

As the dissent in the Eight Circuit decision notes, this blanket exclusion of religious nonprofits is what seals the deal of the policy's unconstitutionality. It's a religious classification that just has no compelling governmental purpose, and is not required by the Missouri Constitutional provision about taking money from the treasury in order to provide "aid" to a church, sect or denomination.

 

[Nous]

The playground is on church property, owned by the church, and administered by the church, and it's being denied government funding because of just that.

Yeah, a policy that uses a religious classification for no compelling governmental purpose.

 

[Skwim]

Yeah, a policy that uses a religious classification for no compelling governmental purpose.

As I see the governmental purpose---if one cares to put it that way--- is to insure adherence to the principle of separation of church and state.

.

 

[Nous]

As I see the governmental purpose---if one cares to put it that way--- is to insure adherence to the principle of separation of church and state.

The Constitutional provision that the state policy must abide by is the Establishment Clause--"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." This certainly doesn't require that a state deny religious nonprofits to receive grants for resurfacing their daycare playgrounds. The question the Court has certified already acknowledges that there is no Establishment Clause issue, which is a direct consequence of the case law.

 

[Willamena]

No at all sure what you have in mind when you say "not an issue of religion." But it is an issue because of religion.

The playground is on church property, owned by the church, and administered by the church, and it's being denied government funding because of just that.


Prove it. Show us where in the brief that was filed the church does not allow the public to use the park during certain hours because of safety reasons. Because that---the disallow of public use--is what my post is about.

.

It needn't be in the brief, if it's the school's policy.

 

[Skwim]

The Constitutional provision that the state policy must abide by is the Establishment Clause--"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." This certainly doesn't require that a state deny religious nonprofits to receive grants for resurfacing their daycare playgrounds. The question the Court has certified already acknowledges that there is no Establishment Clause issue, which is a direct consequence of the case law.

I'll take your word for this, but find it interesting that Cornell University Law School has titled its Supreme Court Bulletin regarding the case as

Trinity Lutheran Church of Columbia, Inc. v. Pauley [with the following links]
First Amendment
Free Exercise Clause
Establishment clause
Equal protection
Separation of church and state​

And headlines the issue as:

"Issues
Does Missouri violate the First Amendment by denying churches governmental aid awarded with neutral criteria and a secular purpose?"
source​

The US Court of Appeals has taken the case because of Sara Parker Pauley's decision, which was based on Missouri's constitutional article written in 1875:

Public aid for religious purposes--preferences and discriminations on religious grounds.
Section 7. That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Source: Const. of 1875, Art. II, § 7.
​

What I also found interesting was the DNR's paraphrased argument here, which reads in part:

Sara Parker Pauley, director of the Missouri DNR, (hereinafter, “DNR”) argues that the State’s decision not to subsidize Trinity Lutheran does not violate the Free Exercise Clause because the Clause only stops the government from prohibiting the free exercise of religion but does not require that the government provide funding to religious organizations. DNR contends that Trinity misinterprets the Free Exercise Clause and ignores its text, history, and the Court’s precedent. DNR maintains that the plain language of the text limits only government action that “prohibits” the free exercise of religion.

Furthermore, DNR notes that the government does not have an obligation to fund its citizen’s exercise of their constitutional rights; indeed, DNR notes that the Clause is written as what the government cannot do to the individual and not in terms of the entitlements that an individual may get from the government. DNR contends that Trinity’s ability to exercise its constitutional right to religion does not depend on government support and, moreover, its request for playground-resurfacing funding is secular and not a “generally available public benefit” because of the limited number of recipients. DNR analogizes Trinity’s claims to those that failed in Locke v. Davey, in which the Court held that Washington’s refusal to provide financial aid to a student pursuing a theology degree was not a Constitutional violation because of the “minimal burden” that the policy placed on the student’s right to freely exercise his religion.
source

.​

 

[9-10ths_Penguin]

...Which could fuel the Trinity Lutheran church arguments. (edited)

It undermines Trinity Lutheran's arguments. They say that they should be treated the same as a non-religious group, but regardless of what happens with this particular grant, they won't be treated the same: Trinity Lutheran gets special consideration and benefits not granted to non-religious groups.

They're arguing that their religious status is being made a liability for them because they can't get their grant. However, when we look at the big picture of everything that's affected by their religious status, it's not clear at all that the church is suffering a net disadvantage. It seems to me that it's actually the opposite, in fact.

 

[leibowde84]

That's true of you but I believe all public works area's are tax exempt as well. I don't know of any state parks or playgrounds that pay taxes.

That's not true. Stadiums are often subsidized and are certainly privately owned and pay taxes.

 

[Nous]

I'll take your word for this, but find it interesting that Cornell University Law School has titled its Supreme Court Bulletin regarding the case as

Trinity Lutheran Church of Columbia, Inc. v. Pauley [with the following links]
First Amendment
Free Exercise Clause
Establishment clause
Equal protection
Separation of church and state​

And headlines the issue as:

"Issues
Does Missouri violate the First Amendment by denying churches governmental aid awarded with neutral criteria and a secular purpose?"
source​

The question the Court certified is:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.​

https://www.supremecourt.gov/qp/15-00577qp.pdf

What I also found interesting was the DNR's paraphrased argument here, which reads in part:

Sara Parker Pauley, director of the Missouri DNR, (hereinafter, “DNR”) argues that the State’s decision not to subsidize Trinity Lutheran does not violate the Free Exercise Clause because the Clause only stops the government from prohibiting the free exercise of religion but does not require that the government provide funding to religious organizations. DNR contends that Trinity misinterprets the Free Exercise Clause and ignores its text, history, and the Court’s precedent. DNR maintains that the plain language of the text limits only government action that “prohibits” the free exercise of religion.

Furthermore, DNR notes that the government does not have an obligation to fund its citizen’s exercise of their constitutional rights; indeed, DNR notes that the Clause is written as what the government cannot do to the individual and not in terms of the entitlements that an individual may get from the government. DNR contends that Trinity’s ability to exercise its constitutional right to religion does not depend on government support and, moreover, its request for playground-resurfacing funding is secular and not a “generally available public benefit” because of the limited number of recipients. DNR analogizes Trinity’s claims to those that failed in Locke v. Davey, in which the Court held that Washington’s refusal to provide financial aid to a student pursuing a theology degree was not a Constitutional violation because of the “minimal burden” that the policy placed on the student’s right to freely exercise his religion.
source

.​

Petitioner argues the Free Exercise claim primarily on the basis of McDaniel, Employment Division v. Smith, Torcaso, Lukumi, the plurality decision in Grumet, and others that seem to have a tenuous relationship the situation in this case. I think the Equal Protection claim (such as based on City of New Orleans v. Dukes) is the better argument.

 

[columbus]

They're arguing that their religious status is being made a liability for them because they can't get their grant. However, when we look at the big picture of everything that's affected by their religious status, it's not clear at all that the church is suffering a net disadvantage. It seems to me that it's actually the opposite, in fact.

And their special religious status is worth so much more than a playground grant they would never consider changing it.
Like religious groups usually do, they want it both ways. Special status, and extra-special status when their special status gets in the way of what they want.
Tom

 

[bobhikes]

That's not true. Stadiums are often subsidized and are certainly privately owned and pay taxes.

Stadium's charge an entrance fee and earn money, There is no charge for the public to use their playground.

 

[leibowde84]

Stadium's charge an entrance fee and earn money, There is no charge for the public to use their playground.

The public is already subsidizing the playground, as the church does not pay taxes. Asking for more public funds is unreasonable, imho.