Why Tire Scraps Matter

Seminal moments often involve otherwise obscure storylines. This is especially true in the law. Consider, for instance, a present case before the U.S. Supreme Court, wherein a major doctrine of religious liberty hinges on shredded tires and preschool playgrounds.

The Court hears oral arguments today in the case of Trinity Lutheran Church of Columbia v. Comer. It involves a church in Missouri, Trinity Lutheran, that applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. The program is intended to reduce the number of used tires in the state’s landfills while at the same time providing a safe place for children to play. The church hoped to use the funds to replace its existing playground, covered with pea gravel – which it describes as “unforgiving” and having “hard, jagged edges” – and grass.[1]

The state ranked Trinity Lutheran’s application 5th out of 44 it received. And although the state awarded 14 grants, it denied Trinity Lutheran’s application, citing a provision of the state constitution that prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

And hence, we get an epic school yard fight on our hands, with the “free exercise clause” on the one side and “establishment clause” on the other.

Here’s the basic struggle in constitutional laymen’s terms: A state has a (U.S.) constitutional obligation to not act in a way which officially favors one religious sect over another. Thus, a state has to be careful about how it spends public money so as to avoid actions which have the practical effect of “establishing” a certain religion (e.g. the Church of England). At the same time, a state has a constitutional obligation to not act with disfavor towards religion and religious entities, or to officially favor one religious sect over another, or even to favor non-religion over religion.

Needless to say, sometimes it can be a very tricky task for a state to perfectly meet both obligations.

Some spectators argue that Missouri’s constitutional provision is consistent with the First Amendment’s prohibition against a state establishing religion since it essentially says “no public money for ANY church.” Others say Missouri’s categorical denial of public benefits to churches infringes on the free exercise of religion because the state is demonstrating hostility towards religion and religious institutions, rather than treating them on equal terms with other entities, regardless of their religious viewpoint.

As with all legal disputes, it’s critically important to keep in mind what is and what is not being disputed. The case is NOT addressing whether or not it’s a good policy idea for the government to give certain grants for certain projects – like funding tire scrap playgrounds. It’s also not about the wisdom of churches accepting public funds or benefits. The important question here is: If the state decides to provide various benefits to the general public, should some organizations be automatically excluded from access to those benefits solely because of the organization’s religious character or views?        

If the First Amendment means anything at all, the answer must be no. Our constitutional republic was established to protect and to foster religion, not to exclude it from the public sphere altogether – which is precisely what Missouri’s amendment does. Read plainly, the Missouri provision would prohibit policemen from responding to an altercation on the church property. It would prevent the fire department from putting out a church fire. These notions, however, are absurd to any reasonable person. And yet in these examples lies the same principle that should permit a church to have equal access to a grant program that provides funding for safer playground surfaces.

Moreover, it can hardly be said that providing funding for safer playgrounds has the effect of establishing a state religion. It may be altogether different if the facts involved sending a group of church members on a mission trip to Haiti for the purpose of evangelizing the people there, but that’s just not the situation here.

Significantly, Virginia’s constitution contains a similar amendment. (These are often referred to as “Blaine Amendments”.) Article IV, Section 16 states, in relevant part, “The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society.” Religious entities in the Old Dominion, therefore, have an equal size stake in the outcome as Trinity Lutheran of Missouri.    

This case is sure to have far-reaching implications. Bound up in Trinity Lutheran’s quest for tire scraps is the determination of whether or not a significant piece of religious liberty will prevail. The issue is before us now because Trinity Lutheran recognized that rubber tire scraps were of some real value to them. Little could they have known just how valuable those same tire scraps would be for the rest of us.


[1] Some of the factual language in this paragraph was taken from scotusblog.com.