Law News and Tips

Trinity Lutheran Church

Fred Vilbig - Thursday, July 20, 2017


     In the mid-1800s America faced a flood of somewhat unwanted immigrants, similar to today. They were Catholics fleeing crushing poverty and looking for opportunities. They not only brought their religion with them, but they also brought their tradition of education.

     Ulysses S Grant was the President during some of this time period, and he was greatly concerned. He did not want public money going to sectarian schools. This was evidently a hot issue in the day. In a speech in 1875, he proposed a Constitutional amendment to prohibit the use of public funds for religious schools or for any church groups.

     Republican Congressman James Blaine proposed such a federal amendment. Although the proposal overwhelmingly passed in the House, the Senate vote failed by four votes. The amendment then faded away never to be heard of again in the halls of Congress.

     But the idea of the amendment lived on. In 38 states, some form of what has been referred to as the “Blaine Amendment” was passed. In Missouri, Blaine language appears in two separate sections of the Missouri Constitution.

     Trinity Lutheran is a small Lutheran congregation in Boone County. It seems to serve a poor, rural population. They operate a childcare center that has a playground. The playground surface was covered with pea gravel. Falling on pea gravel is better than falling on concrete, but there are better, safer playground surfaces.

     The State of Missouri created a grant program to encourage nonprofits to install playground surfaces made from recycled tires. The purpose was both to promote child safety and also minimize waste from used tires. Trinity Lutheran applied for the grant. Although Trinity Lutheran scored in the top five of the grant applicants, the Missouri Department of Natural Resources (which administered the program) denied the application solely because Trinity Lutheran was a church, citing the Blaine Amendments.

     The church sued. It lost in both the District Court level and at the Eighth Circuit Court of Appeals. However, the US Supreme Court agreed to hear the case. Recently in a very narrowly drafted opinion, the Court found in favor of Trinity Lutheran in a 7-2 decision, declaring certain aspects of the Blaine Amendments unconstitutional. The court specifically refused to address certain issues which means more litigation will certainly follow. But at a minimum, the court held that a state can’t exclude a church from a government program solely because it is a church.

     In an interesting side note, on the same day the Court issued the Trinity Lutheran case, it remanded to the lower courts two school choice cases for consideration in light of its Trinity Lutheran ruling.

     There are many who are big advocates of the “separation of church and state” theory. They did not welcome this decision. However, it should be noted that the separation theory itself is not constitutional. It was first raised by Thomas Jefferson in an 1802 letter to a Baptist Association. He was assuring the Baptists that they had nothing to fear from government interference in the expression of their religious beliefs. The idea did not arise to a legal principle until a line of Supreme Court cases in the second half of the 20th century beginning with the Everson case in 1947.

     Where this reasoning goes from here is uncertain. There are both strong advocates and opponents of school choice, and as we have recently seen, money is tight in Missouri. Even though gambling was supposed to fund education (it ended up being a mere shell game), schools in Missouri are badly under-funded, and some schools are badly underperforming.

     The future will be interesting.