No Playground for Christian School? Even Liberal Justices Baffled by Court Case


Trinity Lutheran was supposed to be the first big test for newly seated Supreme Court Justice Neil Gorsuch: a religious liberty case which revolves on whether the government may deny grants to otherwise qualifying preschools on the grounds they are Christian preschools.

Trinity Lutheran applied to participate in a program giving nonprofit playgrounds recycled tires — good for the environment and even better for the toddlers’ knees. Out of 44 applicants, the government ranked their application 5th in quality. But the grant was denied solely on the grounds they are a church-run school, and the Missouri constitution bans any kind of aid, direct or indirect, to religious schools.

However, in today’s oral argument, even staunch liberals like Justice Elena Kagan seemed to be having a hard time coming up with a justification for denying toddlers at Christian preschools the right to compete on an equal basis for recycled tire grants to protect playground knees.

“It seems to me … this is a clear burden on a Constitutional right,” Kagan said, in reference to Missouri’s decision.

Stephen Breyer, another liberal justice, compared denying religious schools the right to apply for playground grants to denying them police or fire services.

“What’s the difference?” Breyer asked.

Many states have similar bans on aid to “sectarian” schools, and they are rooted in an ugly history of bigotry against Catholics.

In the late 19th century, the Catholic population and Catholic schools were both expanding, frightening the WASP establishment. President Ulysses Grant seized on the issue, arguing a need for “good common school education,” and a federal Constitutional ban on the use of public funds for “sectarian schools” sponsored by churches.

As Our Sunday Visitor explains, “Sectarian schools was widely understood to mean Catholic parochial schools, while ‘common schools’ — what are called public schools today — were, says historian James Hitchcock, ‘objectionable to Catholics because they were essentially Protestant.’”

James G. Blaine of Maine drafted an amendment, which passed in the House of Representatives 187 to 7. The amendment failed in the Senate, however, falling four votes short of the necessary two-thirds to pass. But so called Blaine Amendments spread to the states, with many adding a provision to state constitutions banning aid to “sectarian” schools.

So a win in Trinity Lutheran could result in a more equal playing field between religious and nonreligious nonprofits in many states beyond just Missouri.

While the liberal justices ripped into Missouri’s case, Justice Neil Gorsuch mostly stayed quiet on the sidelines.

Of course, one cannot always tell from comments in oral arguments how justices will rule. But, as valuable an addition as Justice Neil Gorsuch is to the bench, it didn’t sound like he is going to have to do much heavy lifting in this case.

Maggie Gallagher

Maggie Gallagher is a senior fellow at the American Principles Project.

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