A church daycare center’s participation in a state’s playground resurfacing program would not violate the First Amendment ban on government establishment of religion, the Southern Baptist Ethics & Religious Liberty Commission (ERLC) has told the U.S. Supreme Court.
The ERLC filed a friend-of-the-court brief April 15 in opposition to lower court rulings that upheld a Missouri government decision against the daycare’s application to participate in the playground resurfacing program. The state rejected the request by Trinity Lutheran Church Learning Center in Columbia, Mo., citing the Missouri constitution’s ban on government funding for religion.
In its brief, the ERLC said it is not just concerned with “the unjustified treatment” of Trinity Lutheran Church “but also with the overall trend of churches and religious actors being excluded from participating in government programs.”
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“This disturbing trend cuts against the values undergirding the Free Exercise, Establishment, and Equal Protection Clauses, which protect religion from being treated with hostility,” according to the brief. “Missouri’s express discrimination against religion should be declared unconstitutional.”
ERLC President Russell Moore said the case “is about maintaining that long-held American principle that state neutrality toward religions does not mean state hostility toward religious people.”
“Separation of church and state means, among other things, that the state should not discriminate against religious people simply because they are religious,” Moore said.
“Here we have yet another example of a misguided attempt to put an ideological price tag on civic engagement,” he said. “The work of churches such as this one is good for communities, and my prayer is that the Supreme Court would recognize this good and not force a choice between public service and faith.”
The Supreme Court announced in January it would review the opinion of the Eighth Circuit Court of Appeals in St. Louis, but it will not hear oral arguments in the case until its next term, which begins in October.
The Lutheran daycare and preschool sought to increase safety on its playground – one the church says also is used by children in the neighborhood – by applying for acceptance in a state-run program that provides rubberized surfaces made from recycled tires.
A Southern Baptist, father-and-son lawyer team is representing the church in cooperation with the Alliance Defending Freedom (ADF). They contend the state’s action resembles hostility and discrimination toward religion.
“The State’s only interest here should be children’s safety,” Jonathan Whitehead said in a written statement after filing a brief on the merits with the high court. “These kids skin their knees when they fall on the playground just like other kids.
“Programs, such as the one in this case, that evenhandedly allocate aid to a broad class of recipients without regard to religion, generally do not violate the Establishment Clause; indeed this Court has held that singling out religious entities for exclusion is unconstitutional,” Whitehead said.
Jonathan Whitehead and his father, Michael, are members of Abundant Life Baptist Church in Lee’s Summit, Mo.
ADF Senior Counsel Erik Stanley said Missouri “cannot single out this preschool for exclusion from the program because it is operated by a church. The U.S. Constitution prohibits this type of hostility to religion.”
The ERLC’s brief, written by Denver lawyer Michael Francisco, contends the exclusion of churches from neutral government programs does “not fulfill the ‘benevolent neutrality’“ long embraced by the Supreme Court.
The ERLC is concerned the justices’ “Religion Clause precedent is being misunderstood and misapplied by lower courts to sanction discrimination against churches,” the brief says.
The question of whether the church’s participation in the Missouri program constitutes direct or indirect government funding does not apply in this case, according to the ERLC brief.
Though the direct or indirect funding issue has been prominent in the Supreme Court’s establishment clause opinions, “it has never been used to justify a targeted exclusion of religious applications from a program of general, secular government aid,” the ERLC says in its brief.
“Allowing churches to participate in secular government aid programs like the Missouri scrap tire program is far closer to general government programs such as fire and sewer services than it is to the educational indoctrination concerns or government funding of essentially religious endeavor,” according to the ERLC brief.
The case is Trinity Lutheran Church v. Pauley.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)