U.S. Catholic Bishops Join Mormons, Salvation Army, Others In USSC Brief Supporting Lutheran School Playground Scrap-Tire Program
By Martin Hill
April 28, 2016


An obscure but very interesting case involving the resurfacing of a Lutheran school playground is headed for the U.S. Supreme Court. A court in Missouri has ruled that the state can exclude a Lutheran school from its scrap tire program, which would use recycled rubber to resurface an asphalt playground. Several religious groups have filed an amicus brief in support of the Lutheran school.

The U.S. Conference of Catholic Bishops (USCCB) issued a press release describing the case as well as the 40-page brief itself. Their statement began,

"On April 21, the U.S. Conference of Catholic Bishops (USCCB), the Missouri Catholic Conference, and other Catholic and non-Catholic organizations filed an amicus brief in the U.S. Supreme Court in a case entitled Trinity Lutheran Church v. Pauley. The case involves a Free Exercise Clause challenge to a decision by the State of Missouri denying a grant for playground resurfacing to an otherwise eligible religious school solely because of its religious affiliation."

The document, submitted to the U.S. Supreme Court, is actually quite interesting reading, chock-full of long-established legal precedents and case law regarding benefits given to religious organizations by the state.

Following are selected excerpts. I have put certain items of interest in bold text.

[An astute reader has pointed out that this astro-turf made from recycled tires is shown to cause cancer, which he claims "is the real issue."]


The First Amendment's guarantee of the free exer- cise of religion bars the government from singling out religious persons or groups for disfavored treatment. Yet Missouri has done just that by excluding petitioner Trinity Lutheran from the state's Scrap Tire Program, which subsidizes the replacement of asphalt playgrounds with rubberized material derived from recycled tires. Missouri's only reason for excluding Trinity Lutheran was a state constitutional provision barring public funding for religious organiz ations; indeed, the state denied Trinity Lutheran's application specifically on the ground that the school is operated by a church. Missouri's overt discrimination against Trinity Lutheran purely because of its religious status is repugnant to the First Amend ment. Like discrimination based on race or national origin, discrimination based on religion is inherently suspect and can be upheld only if necessary to serve a compelling governmental interest. Missouri lacks any legitimate, let alone compelling, interest in excluding Trinity Lutheran from the Scrap Tire Program. Including Trinity Lutheran would not violate the Establishment Clause, or even raise a serious Establishment Clause question. And Missouri cannot justify religious discrimination by pointing to a purported state interest in maintaining greater church-state separation than the Establishment Clause requires. States have no more discretion to discriminate based on religion in violation of the Free Exercise Clause than to violate any other part of the Bill of Rights.

Nor is Missouri's exclusion of Trinity Lutheran justified by this Court's decision in Locke v. Davey, 540 U.S. 712 (2004). Neither Locke's holding nor its reasoning 'extend[s] to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support.' Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1255 (10th Cir. 2008) (McConnell, J.). Unlike Missouri's religious discrimination here, the scholarship program in Locke did not exclude religious individuals or schools; it did not condition benefits on the surrender of religious rights; and it did not involve a 'fungible,' religiously neutral benefit like recycled rubber. In addition, Washington constrained the use of scholarship funds solely to further a 'historic and substantial' state interest'avoiding taxpayer funding for the religious training of clergy 'with no analogue here. No historic or substantial state interest justifies denying public benefits to religious institutions when the benefit is purely secular and cannot be diverted for religious purposes.

To the contrary, the Nation has a long and venerable tradition of including religious institutions in neutral public aid programs. Missouri's religious discrimination not only contravenes the First Amendment, it is profoundly demeaning to people of faith. Official discrimination based on religion is no less invidious or stigmatizing than discrimination based on other protected traits. It sends a message that religious people and their institutions are second-class citizens who deserve special disabilities and are not entitled to participate on equal terms in government programs. Allowing illusory Establishment Clause concerns to trump the prohibition on religious discrimination would invite state officials to invoke those concerns as a pretext for penalizing religious groups whose beliefs or practices diverge from government-prescribed orthodoxy.

Whatever 'play in the joints' exists between the Free Exercise Clause and the Establishment Clause, it does not authorize the blanket exclusion of religious institutions from public benefits programs that provide religiously neutral benefits to a wide range of recipients based on secular criteria and for secular purposes. Otherwise the government could exclude religious institutions from basic public services like police and fire protection. The decision below cannot be reconciled with the Nation's constitutional commitment to religious equality and should be reversed.

...2. These same principles apply to religious discrimination in public benefit programs. The state may not, for instance, deny unemployment benefits to employees who lose their jobs because they refuse to en- gage in activity contrary to their religious beliefs. See Sherbert v. Verner , 374 U.S. 398 (1963); Thomas v. Review Bd. of Ind. Emp't Sec. Div. , 450 U.S. 707 (1981); Hobbie v. Unemp't Appeals Comm'n , 480 U.S. 136 (1987); Frazee v. Ill. Dep't of Emp't Sec. , 489 U.S. 829 (1989). Thus, if the state provides benefits to individuals whose employment is terminated for legitimate nonreligious reasons, 'it may not refuse to ex- tend that system to cases of 'religious hardship' without compelling reason.' Emp't Div., Dep't of Human Res. v. Smith , 494 U.S. 872, 884 (1990); accord Lukumi , 508 U.S. at 537; Hobbie , 480 U.S. at 148 (Stevens, J., concurring) ('In such an instance, grant- ing unemployment benefits is necessary to protect religious observers against unequal treatment.'). The unemployment benefit cases make clear that the government does not get a free pass under the Free Exercise Clause when spending its own money. See Sherbert, 374 U.S. at 404 ('It is too late in the day to doubt that the liberties of religion ... may be infringed by the denial of or placing of conditions upon a benefit or privilege.').

Discriminatory denial of government benefits penalizes religious exercise and puts pressure on religious observers to abandon or modify their religious beliefs or practices so they can enjoy the same benefits afforded to others. See id. at 405 ('imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights'); Thomas, 450 U.S. at 717 '18 (denying benefits on account of religion 'put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs'). In an era of pervasive government spending, excluding religious individuals and groups from public benefit programs would put a heavy thumb on the scales against religion. See Thomas C. Berg & Douglas Laycock, The Mistakes in Locke v. Davey and the Future of State Payments for Services Provided by Religious Institutions, 40 Tulsa L. Rev. 227, 235 (2004) ('Discriminatory funding is always the worst policy, because it pressures citizens to adapt their own religious choices to the state's favored categories.').

Nor does Smith give the government license to exclude religious individuals or groups from public benefit programs. Smith held that the Free Exercise Clause does not bar the application of neutral, generally applicable laws to religiously motivated conduct. 494 U.S. at 878' 82. But a law that overtly discriminates against religion is neither neutral nor generally applicable. See Lukumi, 508 U.S. at 533, 542'43.

Far from undermining the principle of religious nondiscrimination, Smith reaffirmed that the Free Exercise clause precludes government from 'impos[ing] special disabilities on the basis of religious views or religious status.' 494 U.S. at 877. And Smith expressly confirmed that laws discriminating based on religion are subject to strict scrutiny: 'Just as we subject to the most exacting scrutiny laws that make classifications based on race, or on the content of speech, so too we strictly scrutinize governmental classifications based on religion.' Id. at 886 n.3 (citations omitted)

... B. Other Constitutional Provisions Lik ewise Prohibit The Government From Discriminating Against Religious Pe rsons Or Organizations.

The fundamental principle of religious nondiscrimination extends beyond the Free Exercise Clause. It also has animated this Court's decisions under the Establishment Clause, the Free Speech Clause, and the Equal Protection Clause. 1. By prohibiting laws 'respecting an establishment of religion,' the Establishment Clause restricts governmental actions that discriminate against religion the government has no more power to establish nonreligion than it has to establish religion. This Court has interpreted the Establishment Clause to ensure that legislation 'neither advances nor inhibits religion.' Sch. Dist. v. Schempp, 374 U.S. 203, 222 (1963) (emphasis added); accord Zelman v. Simmons - Harris, 536 U.S. 639, 648 '49 (2002); Kiryas Joel , 512 U.S. at 717 (O'Connor, J., concu rring in part and in judgment) (the Establishment Clause 'provide[s] no warrant for discriminating against religion').

This Court's seminal decision recognizing the incorporation of the Establishment Clause as binding on the states through the Fourteenth Amendment's Due Process Clause underscored that governments may not 'exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the member of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.' Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). Cutting off ac- cess to government services, the Court held, is not required by the Establishment Clause; neither is it tolerable under the First Amendment for states to 'handicap religions' by excluding them. Id. at 17'18.

Rather, '[t]hat Amendment requires the state to be a neutral in its relations with groups of religious believers and non -believers.' Id. at 18. Official hostility toward religion is no more permitted under the Establishment Clause than it is under the Free Exercise Clause. See Lukumi, 508 U.S. at 532 (the Establishment Clause 'forbids an official purpose to disapprove of a particular religion or of religion in general'). Far from justifying exclusion of religious persons or groups, the Establishment Clause requires that government 'not be hostile to any religion.' Epperson v. Arkansas, 393 U.S. 97, 104 (1968); see Cty. of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 657' 58 (1989) (Kennedy, J., concurring); Van Orden v. Perry, 545 U.S. 677, 704 (2005) (Breyer, J., concurring in judgment) ('hostility toward religion ... has no place in our Establishment Clause traditions').

2. The Free Speech Clause likewise protects persons from discrimination or exclusion based on their religious views. The government may not discriminate against speech on account of its content or view- point without a compelling interest. This prohibition applies equally to religious ex pression and association. See Lukumi , 508 U.S. at 543 (noting 'parallels' between the principles of general access required u n- der free speech and free exercise law). Thus, the Court has consistently held that government may not exclude religious speakers f rom a public forum, and that free speech standards do not change solely b e- 14 cause the state is pursuing greater church -state se p- aration than the Establishment Clause requires. See Widmar v. Vincent , 454 U.S. 263, 276 (1981); see also Lamb's Chapel v. Ctr. Mo riches Union Free Sch. Dist. , 508 U.S. 384 (1993); Good News Club v. Milford Cent. Sch. , 533 U.S. 98 (2001) (affirming the right of religious groups and speakers to access after -hours facilities on equal footing with secular counterparts). Even with respect to funding, the Court has '[m]ore than once ... rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad- reaching government programs neutral in design.' Rosenberger v. Rector & Visitors, 515 U.S. 819, 839 (1995). Rather, the Court 'ha[s] held that the guarantee of neutrality is respected, not offended, when the government, fol- lowing neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.' Id.


Missouri's exclusion of Trinity Lutheran from the Scrap Tire Program, a rare instance of overt discrimination against religion, cannot withstand strict scrutiny. Subsidizing the resurfacing of a religious school's playground with recycled rubber would not offend the Establishment Clause. And absent an actual Establishment Clause violation that it is attempting to avoid, Missouri lacks a compelling state interest that could justify religious discrimination. Even if a lower level of scrutiny applied, Missouri has no interest comparable to the 'historic and substantial' state interest in Locke in declining to fund the training of ministers. Because the Scrap Tire Program is available to a wide range of nonreligious recipients, and because a rubber playground surface cannot be used to advance religion, any asserted antiestablishment interest here is, at best, 'negligible.' Pet. App. 29a (Gruender, J., dissenting). Negligible establishment concerns cannot justify religious discrimination that violates the Fr ee Exercise Clause.

A. Including Trinity Lutheran In The Scrap Tire Program Would Not Violate The Establishment Clause.

Missouri cannot justify its religious discrimination as necessary to comply with the Establishment Clause. As every member of the Eight h Circuit panel correctly recognized, 'Missouri could include the Learning Center's playground in a non- discriminatory Scrap Tire grant program without violating the Establishment Clause.' Pet. App. 9a. Agostini v. Felton, 521 U.S. 203 (1997), sets forth the criteria for determining whether including religious schools in a public aid program is consistent with the Establishment Clause. In Agostini, this Court rejected the rule that 'all government aid that directly assists the educational function of religious schools is invalid.' Id. at 225. Instead, such aid is consistent with the Establishment Clause so long as it has a secular purpose and does not have the primary effect of advancing or inhibiting religion. Id. at 222 '23; accord Mitchell v. Helms, 530 U. S. 793, 807 (2000) (plurality).

The Court further clarified that government aid to religious schools does not have the primary effect of advancing religion if it does not re- sult in 'governmental indoctrination' of religion; does not 'define its recipients by reference to religion'; and does not 'create an excessive entanglement' between church and state. Agostini, 521 U.S. at 234. These criteria are easily satisfied here. It is undisputed that Missouri's Scrap Tire Program has a secu- lar purpose by offering grants 'to qualifying organizations for the purchase of recycled tires to resurface playgrounds, a beneficial reuse of this solid waste.' Pet. App. 2a '3a (citing Mo. Rev. Stat. '' 260.335.1, .273.6(2)). Subsidizing the resurfacing of playgrounds with reused rubber has the thoroughly secular purposes of protecting the safety of schoolchildren while reducing the environmental and safety hazards associated with disposing of used tires in landfills. Likewise, including Trinity Lutheran in the Scrap Tire Program would not impermissibly advance religion. Providing recycled rubber to resurface Trinity Lutheran's playground would result in no government -sponsored religious indoctrination; accepting the subsidy would merely obligate Trinity Lutheran 'to promote the Scrap Tire Program and educate the public about the benefits of recycling.' Pet. App. 38a.

The program awards subsidies based on criteria that have no reference to religion 'except as a discrimin a- tory, post -application disqualification. And allowing religiou s schools to participate in the program on equal terms with others would not result in excessive entanglement. Neither the 'administrative cooperation' necessary for a short -term contractual relationship nor any purported 'dangers of political divisiveness' would create an excessive church-state entanglement. Agostini , 521 U.S. at 233 '34 ('Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two.') (citation omitted).

... Missouri's preference for greater church -state separation gets no boost merely because it is embodied in the state constitution rather than a statute or policy. See McDaniel, 435 U.S. at 621; Torcaso, 367 U.S. at 495. A state's interest in promoting the separation of church and state under its own constitution is necessarily limited by its overriding duty to comply with the federal Constitution. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); W. Va. State Bd. of Educ . v. Barnette, 319 U.S. 624, 638 (1943)

3. The courts below tried to equate this case with Locke by contending that the state has a substantial interest in avoiding 'the direct expenditure of public funds to aid a church.' Pet. App. 12a n.3; see id. at 54a ('the direct payment of government funds to a religious institution' raises 'antiestablishment concerns that are at least comparable to those relied on by the Court in Locke'). This reasoning is deeply flawed. Subsidizing the use of recycled tires to resurface a school playground is about as far removed as possible from Locke's historic concern with the use of tax money for the training of professional ministers.

...Indeed, this case should be easy because there is 'no substantial risk that [recycled tires] could be used for religious educational purposes.' Regan, 444 U.S. at 656. Recycled tires have no religious content and cannot be diverted for religious purposes. Regan, 444 U.S. at 656. Recycled tires have no religious content and cannot be diverted for religious purposes. Under any view of the Establishment Clause, such 'aid of a secular character with no discernible benefit to ... a sectarian objective is allowable.' Mitchell, 530 U.S. at 868 (Souter, J., dissenting). As Judge Gruender aptly put it below, 'schoolchildren playing on a safer rubber surface made from environmentally -friendly recycled tires has nothing to do with religion.' Pet. App. 29a (dissenting op.); cf. Am. Atheists, 567 F.3d at 293 ('Unlike a teacher, a sign -language interpreter or even an overhead projector'all of which conceivably can be used to communicate secular and religious messages'a brick, gutter or bush (unless burning) cannot be coopted to convey a religious message').

Because resurfacing a playground does not advance religion, the Court need not reach the question whether a state may ex- clude religious institutions from public aid programs that provide benefits that could be used for religious ends.

... If Missouri can deny Trinity Lutheran access to playground rubber because of its religious affiliation, then states could deny funding to Habitat for Humanity or a church-run Meals on Wheels service on the same discriminatory basis. Such a result would be untrue to our national tradition and would inflict a palpable injury on both religious institutions and the many Americans who rely on them to deliver vital social services.

Whatever Missouri's intent, its exclusion of Trinity Lutheran from an otherwise neutral, secular aid pro- gram based solely on its religious status suggests that the state 'disapprove[s] of a particular religion or of religion in general.' Id. at 532. But in our constitutional tradition, religious people and institutions are not second-class citizens, and freedom of religion under the First Amendment is not a second -class right. As with any other suspect classification, Missouri's religious discrimina tion is unlawful and cannot be upheld unless it is necessary to serve a compel- ling governmental interest. Because there is no legitimate, let alone compelling, reason to exclude religious schools from the Scrap Tire Program, the denial of Trinity Lutheran's application violated its constitutional right to the free exercise of religion.

You can read the full document here: http://www.usccb.org/about/general-counsel/amicus-briefs/upload/Trinity-Luthern-Church-v-Pauley.pdf

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