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Church, State, and Used Tires: The New Term's Most Interesting Case

What could be the upcoming term's most interesting case isn't a dispute over controversial subjects like gay rights or immigration. It doesn't involve boldface names or the continued existence of massive government programs. No one's life hangs in the balance.

It's Trinity Lutheran v. Pauley, and it's a battle over used tires and religion -- or rather, whether a church in Missouri can have access to a state program that helps resurface playgrounds with rubber from ground up scrap tires. But as peculiar as this conflict might be, it could have a significant impact on religious freedom and the separation of church and state.

The Establishment Clause, Ground Tires, and the Wall Between Church and State

Here's how a dispute about playground flooring made its way to the Supreme Court.

Missouri's Department of Natural Resources operates a scrap tire surface materials grant that gives grants of $20,000 or $10,000 to groups seeking to resurface their playgrounds with safer rubber flooring -- made up of a minimum of 40 percent Missouri-generated scrap tires, of course.

In 2012, the Trinity Lutheran Church of Columbia applied for the grant, to resurface the playground for its religious daycare and preschool. The church ranked high among applicants but was denied a grant, on the basis that the Missouri DNR was "unable to provide this financial assistance directly to the church" without violating the Missouri Constitution.

Now, as the Eighth Circuit noted when it upheld the state's decision, the wall between church and state in Missouri is built high. Missouri's constitution has a separation of church and state provision that is both stronger and more explicit than that in the U.S. Constitution, declaring that "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church," and that the state shall never pay for "anything in aid of any religious creed," including the support of religious schools.

The Eighth determined that Trinity Lutheran "seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."

Free Rubber and Free Exercise

The church maintains that the DNR's decision violates the Free Exercise Clause and the Equal Protection Clause. (The church's cert petition disagrees with the Eighth's characterization of the challenge, noting that the church only challenges the relevant section of the Missouri Constitution as applied to the church and the tire program, and does not argue that the provision is unconstitutional on its face.)

The exclusion of the church from the program, Trinity Lutheran argues, fails strict scrutiny by withholding from them the benefit of a public program solely because they are a religious organization. "There cannot be a compelling interest in the separation of church and state if there is no possibility of a breach by treating religious citizens the same as everyone else." They further argue that the Eighth erred by relying on Locke v. Davey, the 2004 decision upholding the constitutionality of a Washington State program that excluded divinity students from scholarship programs.

Missouri counters by arguing that nothing it has done has impeded Trinity Lutheran's ability to exercise its religion freely. Further, it argues, treating churches separately from other groups does not involve the use of a "suspect classification" to which strict scrutiny would apply. The state even contends that the resurfacing program wasn't the "general public benefit" that the church claims. After all, there are limited funds for playground resurfacing in Missouri, and more than two-thirds of the applicants who applied alongside Trinity Lutheran were also denied.

And so, what starts as a dispute over tires touches on everything from free exercise, to the separation of church and state, to the constitutionality of a state constitution, the proper level of scrutiny, and the nature of the program itself. Some of these issues, like the interaction between the state and the church, are older than the republic itself. Others, like whether the tire program is a general public benefit, are a bit more idiosyncratic. All of them have significant implications well beyond the dispute at hand.

So, who will triumph in the battle between church, state, and playground flooring? We'll have to wait a bit to see. Though the case was granted cert early on, it still has not been scheduled for oral arguments.

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