What started on the playground ends at Supreme Court High court to decide if government can discriminate against Lutheran preschool, blacklisting them from playground improvement program

WASHINGTON, D.C. – The Supreme Court heard argument this morning in Trinity Lutheran Church of Columbia, Inc. v. Comer, involving a Lutheran preschool, which was blocked from participating in a Missouri program that provides shredded-tire resurfacing to make playgrounds safer for kids. The case will determine whether the government can blacklist religious organizations from participating in public safety programs simply because they are religious. This is the first religious liberty case heard by newly confirmed Justice Gorsuch.

The state of Missouri created a program to protect schoolchildren from injury by helping nonprofit organizations resurface their dilapidated playgrounds. The program would replace old, hard gravel playground surfaces with new, safer and softer recycled shredded tire material. Trinity Lutheran preschool met all the state’s criteria for a new playground surface. Yet the school was rejected from the program because, according to the state, letting churches participate in the program violated an old, discriminatory state law designed to block funding to Catholic schools. Becket, which filed a friend-of-the-court brief, argued it is discriminatory to block religious groups from generally available public safety programs.

“What the state is saying here is that it wants kids to play safe on playgrounds, just not church-owned playgrounds,” says Hannah Smith, senior counsel at Becket. “But the government can’t deny safety benefits to kids at a Lutheran preschool simply because their school is religious—that’s not good for kids and it’s not good law.”

Trinity Lutheran’s playground, currently covered with a mix of gravel and grass, is used not only by its own schoolchildren but by children from the surrounding community. Missouri ranked Trinity Lutheran’s application fifth out of 44 applications based on numerous secular criteria, including overall quality of the project, the benefit to the surrounding community, and the school’s recycling education programs. But, citing Missouri’s discriminatory Blaine Amendment, the state denied Trinity Lutheran’s application solely because the preschool is run by a church.

Missouri’s Blaine Amendment was enacted in the late 1800s during a time of anti-religious bigotry and was originally designed to block funding to Catholic schools. Since then, Blaine Amendments like Missouri’s, have been used to discriminate against people of all faiths including a Florida prisoner ministry, a Catholic orphanage, and several religious schools, preventing them from participating in public benefit programs. Trinity Lutheran sued the state of Missouri in 2013 for this blatant discrimination.

“All of the children who play on Trinity Lutheran’s playground—its own students and the neighborhood kids—are just as important as any others,” says Smith. “They deserve the same protections that Missouri is making available to others around the state.”

Becket, along with Stanford Law Professor Michael McConnell, submitted a friend-of-the-court brief defending Trinity Lutheran’s right to participate in the state’s program on equal footing with all other applicants.

A ruling is expected by the end of June.

For more information or to arrange an interview with a Becket attorney, please contact Melinda Skea at media@becketlaw.org or 202-349-7224. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 20 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).