The Supreme Court has agreed to hear a religious liberty case that may bear on the success of school choice across the country. The case doesn’t directly involve school choice. It’s about scrap tires and playgrounds. But its outcome may determine the extent to which states can use the excuse of church-state separation to bar religious schools from neutral aid programs designed to facilitate student choice.
The Trinity Lutheran Church of Columbia runs a daycare with a playground. In 2012, the Church learned about Missouri’s scrap tire program. After the wheels on the bus go round and round, the state helps non-profits turn the old tires into rubber playground surfaces. But the Church was denied a scrap tire grant because of its religious mission. The government justified this discrimination with Missouri’s constitution, which says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”
Trinity Lutheran sued, claiming that the denial of access to a neutral aid program violates its rights to the free exercise of religion and equal protection guaranteed by the U.S. Constitution. After losses at the trial and appellate courts, the Supreme Court will now weigh in.
The question that the Court will address 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.” The answer will be important to the school choice movement. Many school choice programs, such as scholarship tax credits and vouchers, allow religious schools to participate in “neutral and secular aid programs” that help families afford private school. Since most private schools are religious, some of these programs may stand or fall with the Supreme Court’s ruling. In fact, PLF recently sued the Montana Department of Revenue, which, like Missouri, has told religious schools that they cannot participate in the state’s new scholarship program because the state constitution forbids appropriations that aid religion.
The bald discrimination in the Trinity Lutheran Church case cannot withstand constitutional scrutiny. Withholding a general benefit just because the playground’s owner is religious is no different than imposing a special tax on a church solely because it’s a religious institution. Surely governments cannot place a special excise tax on unleavened bread or a special property tax on a sacred burial site. Likewise, Missouri can’t deny a grant to a church that would make a playground safer for kids and is otherwise available to any similar secular instiution.
Of course, religious institutions already receive numerous government benefits offered on an equal basis to all–police and fire protection, sewer connections, sidewalk repairs, and so on. A ruling against Trinity Lutheran may imperil these traditional benefits. Should we conclude that if a fire is raging, the municipal fire department can save everything but the neighborhood church? The equality championed by our Constitution would forbid it.
Church playgrounds deserve the same offer of increased safety that secular playgrounds do. And kids at religious schools should have access to the same tuition assistance that kids at secular schools can receive. Basic fairness demands it. And so does the Constitution.