Cooper: Recycled tires and religious liberty

Cooper: Recycled tires and religious liberty

July 8th, 2017 by Clint Cooper in Opinion Free Press

The empty playground at Trinity Lutheran Church in Columbia, Mo., awaits its recycled tires surface.

Photo by Annaliese Nurnberg

James G. Blaine never saw a recycled tire, much less an automobile, but it was his failed constitutional amendment nearly a century and a half ago that led to the recent United States Supreme Court ruling that will allow a Lutheran Church preschool and day care center in Columbia, Mo., to have a playground surface of recycled tires.

In time, the high court ruling may have more implications than a playground in the Show-Me State — or it may not.

But here's how we got there:

Blaine, then a Republican member of the U.S. House of Representatives from Maine, was trying to support then-President Ulysses S. Grant, who had called for free public schools but no government support for "sectarian schools" run by religious organizations or schools with "sectarian, pagan or atheistical dogmas."

His 1875 Constitutional amendment read in part: "[N]o money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations."

Fueled by the country's anti-Catholic immigrant fervor, the amendment sailed through the House by a vote of 180-7. However, it failed by four votes of the necessary two-thirds vote in the Senate and never became law.

Blaine, who already had been the speaker of the House, went on to be a U.S. senator, secretary of state under two presidents and was the 1884 Republican nominee for president, losing to Grover Cleveland by fewer than 58,000 votes out of nearly 10 million cast, one of the closest results in history.

Individual states, though, took up his no-tax-money-for-private-schools cause. In time, all but 10 states — Tennessee was one of the 10 — passed various laws that became known as "Blaine amendments" that banned the use of public funds to support sectarian private schools.

That led to the recent denial by Missouri, which had enacted one of the "Blaine amendments," of Trinity Lutheran Church's competitive application for the recycled tires playground surface, which comes from a program administered by the state's Department of Natural Resources.

Not surprisingly, state courts — and eventually federal courts — upheld the state's denial. But the Supreme Court said otherwise, with Chief Justice John Roberts writing that the state cannot exclude a church from a public benefit merely because it is a religious institution and that to do so "is odious to our Constitution."

On the surface, the 7-2 ruling is significant because it seems to portend a broader decision about school choice and about whether parents have the right to expect their tax dollars — in the likes of vouchers or tax credits — to follow their children into religious or sectarian schools.

However, where the case gets interesting is a footnote in his ruling to which Roberts called attention. The footnote states, "The case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms or discrimination."

Court watchers have scratched their heads about this addendum. On the one hand, as with many cases in the Roberts court, it may mean the decision had fewer broader implications. Others said the footnote was added to gain the votes of liberal Elena Kagan and moderate Anthony Kennedy.

On the other hand, the court sent back to Colorado and New Mexico — for reconsideration based on the Trinity Lutheran decision — cases on tuition scholarships and textbook lending, respectively, that were appealed from the two state supreme courts. And Justice Neil Gorsuch, in a separate concurring opinion, noted "that some might mistakenly read it to suggest that only 'playground resurfacing' cases, or only those with some association with children's safety or health are governed by the legal rules recounted in and faithfully applied by the Court's opinion . Such a reading would be unreasonable for our cases are 'governed by general principles rather than ad hoc improvisations' and the general principles here do not permit discrimination against religious exercise — whether on the playground or anywhere else."

Given the latter, we believe it will be difficult for the court to make future decisions that force churches to choose between participation in public-run programs and maintaining their religious character. And, yes, that could involve school choice decisions. Indeed, when public schools no longer serve the needs of many students and when so many alternatives are available, that's a discussion the country needs to have.

Whatever happens in the future, the recent Supreme Court decision was a ruling for religious liberty, a liberty Blaine apparently couldn't fathom.

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