This case is interesting in that just a few days ago the new Governor announced that the state would no longer be using the challenged policy that excluded from the grant program non-profit organizations if they are religious. Obviously the current Governor does not consider the challenged policy to be necessitated by the state's constitutional provision on which the policy had been justified. Nevertheless, this twist doesn't render the case moot, and the Court heard arguments Wednesday.
The question the Court certified is this:
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.
The Missouri Scrap Tire Grant Program provides grants for nonprofit organizations to purchase playground surfaces made from recycled tires. The program is funded by a fee charged to all buyers of new tires, and the purpose of the program is to reduce the number of old tires being dumped in landfills (and elsewhere) and to make playgrounds safer for children.
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 This provision was the basis of the state's (now rescinded) policy that disallowed such grants to religious nonprofits except under certain conditions, among these, that the “grant will be used for secular (separate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.” The preschool and daycare center of the Trinity Lutheran Church (open to all), a nonprofit organization, applied for a grant for its playground; on the state's neutral criteria, it was ranked 5th out of 44 applications, but was denied solely because it is a religious nonprofit.
Both the district and Circuit courts ruled against petitioners. The Circuit court decision suggests to me that the case was poorly argued by in the petitions submitted to these courts. The state's primary argument has been premised on
Locke v. Davey (2004), in which the Court upheld Washington statutes and constitutional provisions that prohibited public scholarship aid to post-secondary students pursuing a degree in theology. However, there are important distinctions between that case and this one. The statute upheld in
Locke allows students to use their scholarships to attend an accredited pervasively religious school and to take courses in devotional theology. Such religious schools that receive scholarship money could require its students to take devotional theology classes. The Court made clear that it was upholding the statute on grounds of the state's interest in not funding an “essentially religious endeavor,” namely the religious training of clergy.
Obtaining of a safer playground surface for preschoolers at Trinity Lutheran daycare center is not an “essentially religious endeavor,” and it is not for purpose of the center or the children to engage in an essentially religious endeavor. Far from it. Beyond this, there are a slew of cases in which the Court has held, such as in
McDaniel v. Paty, that “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.”
According to Amy Howe, oral arguments seemed to favor the daycare center, with only Justices Ginsburg and Sotomayor leaning toward the state policy. Kagan and Breyer seemed to be skeptical of such a policy. From my understanding of the case and the case law at the moment, I believe the daycare center has the better argument, especially under the circumstances of the state having relinquished the policy.
