SCOTUS playground case can end anti-religion, anti-Catholic law
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When a recent out of town visitor stepped onto my daughter’s school playground, she gasped at the springy surface underneath her feet. I explained that like so many schools and parks around the country, her school had used recycled rubber tires for a playground surface, a move that dramatically reduces scrapes and breaks when kids inevitably fall while playing. It has the added benefit of being eco-friendly and a great way to teach kids about recycling.

Today, the Supreme Court will hear oral arguments about one school’s years-long quest to implement the same benefit for its own students. It’s hard to imagine why a pre-k playground surface would be controversial enough to make it to the highest court in America. And yet, as Amy Howe of SCOTUS Blog put it of the case Trinity Lutheran Church of Columbia v. Comer, “the stakes in the case could be far bigger than playground surfaces.”


Indeed the tire surfaces have proven such a safety improvement for kids and such a good way to reduce bulky landfill waste that one state decided to incentivize schools to redo their playgrounds by offering a program in which schools and nonprofits can compete for grants to resurface their playgrounds.


When Trinity Lutheran, a church-affiliated preschool, applied for the program, their application was ranked fifth of forty-four, high enough to qualify them for a coveted grant.

But their application was ultimately rejected for one and only one reason: the school was tied to a church. The state of Missouri invoked a centuries-old Blaine Amendment that hearkens back to the bigoted anti-Catholic days when Americans were fearful of “papists” and sought to cut them out of society. One way they did this was through laws that singled out Catholic institutions like schools and charities and denied them access to generally available programs, ironically on First Amendment grounds.

It’s 2017 now, and Americans have long learned they needn’t live in terror of Catholics anymore, and yet countless states still have Blaines on the books, and countless other religious schools, charities, and other institutions have been ensnared by the fundamentally anti-religious animus of the laws.

The preschoolers at Trinity Lutheran are the hallmark example of the kind of innocent victims that Blaine Amendments make of ordinary citizens. Their crime is that their parents chose a parochial nursery for them, one which clearly wants its kids to have the same safe and ecologically innovative blacktop enjoyed by innumerable other kids around the country.

The state in all seriousness is trying to argue that it might somehow be endorsing religion by giving the school the same grant it would give to a handful of other secular schools. And yet the opposite is true; in choosing to deny the school a grant on the mere grounds that it professes a religious creed, the state is discriminating against the school and its students on the basis of religion. Or as Hannah Smith, senior counsel for the religious liberty law firm The Becket Fund, put it, “Covering a playground with shredded tires is going to prevent injuries; it is not going to pave the way to theocracy.”

Making the oral arguments all the more interesting, they will be the first on the issue of religious liberty to be heard by the recently-confirmed Associate Justice Neil Gorsuch. Gorsuch joins the Court distinguished by his clear record in support of religious liberty, having ruled not once, but twice against the Obama administration’s regulation that attempted to force faith-based charities like the Little Sisters of the Poor to provide things like abortion drugs in their healthcare plans, among other important religious liberty rulings.

That he will be skeptical of a law that allows a state to single out and deny preschool kids access to a neutral and widely available recycled tire program just because their school is religious seems a given.

And that’s what makes the stakes in this case a lot greater than a few scraped knees. The case has the faithful citizens of America hoping that we can finally put Blaine Amendments in the 19th century graves where they belong. It presents the chance to teach America’s schoolchildren, religious and non, that anti-religious discrimination is un-American and unconstitutional and needs to go.

Ashley McGuire is a senior fellow with The Catholic Association and the author of the new book, “Sex Scandal: The Drive to Abolish Male and Female” (Regnery Publishing, 2017). McGuire has appeared on CNN and its international affiliate, CBS, FOX, PBS, EWTN, and the BBC, and her writing has appeared in The New York Times, the Wall Street Journal, the Washington Post, among others.

The views of contributors are their own and not the views of The Hill.