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Is It Okay To Ban Nonprofits From Tax-Funded Programs Solely Because They’re Religious?


Imagine bringing your child to a local private playground and encountering a person handing out safety equipment to kids. He explains that the city has instituted a program funded by community members to reduce injuries and improve the play experience for children. As an added bonus, the equipment is made from recycled materials and benefits the environment.

The next week you bring your child to school and encounter another individual, again handing out safety equipment for use on the school playground. She speaks proudly about the reduction in injuries, the increased time kids are spending on the playground, and the positive response from the community.

The following week you and your outdoor enthusiast child visit yet another local playground, but there is no safety equipment to be found. When you call the city to inquire—after all, that’s the kind of parent you are—you receive a puzzling response: State resources are not available for this playground, because it is located on the property of a nonprofit that happens to be religious.

You’re understandably confused and seek clarification. “Why is the state only protecting the safety of some children? I was told that this program is funded by the community, so why are some playgrounds being excluded?” The second response is no better than the first: Because the state constitution prohibits aid to religion, playgrounds at religious nonprofits are banned from the program.

From Implausible Scenarios to Disconcerting Realities

Does such a scenario seem implausible? Perhaps your thoughts echo the words of my wife’s grandmother after we took her to a movie with talking animals: “Well, it seems a bit far-fetched.” But unlike a fantasy world where Fluffy the kitten can wax eloquent about philosophy and the arts, the scenario described above is grounded in reality.

I wrote recently about Trinity Lutheran Church v. Comer, a case in oral arguments at the Supreme Court on April 19. The justices, which include the newly confirmed Neil Gorsuch, are set to determine whether government can exclude certain nonprofits from neutrally available public benefits solely because they are religious. Here is a brief excerpt from that piece:

The facts are straightforward. Trinity Lutheran Church operates a preschool called The Learning Center, which has a playground on site for use by students and the community at large. Trinity applied for a state program instituted to make playgrounds safer by reimbursing grant recipients for rubberized surface material they purchase for the playgrounds. The program, known as the Missouri Scrap Tire Grant Program, also benefits the environment because the surface material is made from recycled tires, thereby reducing the number of tires in landfills. Appropriately, the program is funded by a tax on all tire purchases, ensuring that the community pays and the community benefits.

No one may have been onsite handing out safety equipment, but through the Scrap Tire Program, they were providing something just as valuable—a safe playground surface. As with with my original hypothetical, The Learning Center playground was shut out because it was located at a religious nonprofit, and state officials assumed that allowing a church to participate would constitute providing aid to religion.

Knees and Heads, Not Fish and Bread

The Eighth Circuit’s ruling that led to the Supreme Court hearing relied heavily on its analysis of a previous U.S. Supreme Court decision, Locke v. Davey. In that case, decided in 2004, the Supreme Court held that the state of Washington could deny scholarships to students who were pursuing a devotional theology degree. The Supreme Court concluded the state should not be compelled to fund the devotional training of clergy, deeming it an “essentially religious endeavor.”

If you’ve spent much time at playgrounds—and as a father of four, I have—you’ll agree it is hardly the setting for theological instruction or any other “essentially religious endeavor.” Granted, there might be a sprinkling of “Do unto others” lectures, amongst the admonitions to “Stop throwing sand,” “Don’t put that in your mouth,” and the accompanying, “Spit that out!” But debates regarding the relative merits of Calvinism and Arminianism are incredibly rare, even on the most spiritual of slides and monkey bars. And I have yet to see a turn on the teeter totter devolve into a discussion on eternal security.

Thus, unless the justices decide to adopt the Eighth Circuit’s exceedingly broad view of Locke, one in which a religious entity can be excluded from a neutral aid program, even when no “religious endeavor” exists, there is no legitimate reason to exclude Trinity Lutheran from a program promoting playground safety.

Nothing makes playgrounds at religious institutions intrinsically safer. No halo will reliably protect guests from the intersection of playground equipment, youthful enthusiasm, and still-developing motor skills. Skinned knees hurt just as much on the grounds of a religious school as on those at the local community center.

The reality is that with enough time at the playground, Jack will fall down and break his crown, and Jill will come tumbling after. While vinegar and brown paper are Mother Goose’s prescribed remedy, modern advancements in playground technology—not to mention an evolving understanding of head injuries—compel us to do all we can to reduce the incidents of such injuries.

Scrap tire surface has nothing to do with religion, and everything to do with children’s safety. When it comes to the playground, we have an obligation to play fair.