Skinned knees and the Constitution: Playground safety in mid-Missouri becomes a federal case

Jan 3, 2017

When Annette Kiehne looked for ways to make the playground safer at Trinity Lutheran Church preschool in Columbia, Missouri, she had no idea the plan would become a federal case – all the way up to the U.S. Supreme Court.

As director of the school, she just wanted to replace the playground’s pea gravel surface with shredded tires, which would be a more comfortable cushion for the inevitable tumbles from monkey bars and such. And the church playground qualified for a state program that was giving away just such a surface.

But after Trinity was judged fourth best of the 14 applicants who qualified to get the shredded rubber, state officials changed their minds. Because the preschool is run by a church, they decided, Missouri law bars it from taking part in a program funded with state money.

Backed by a group known as Alliance Defending Freedom, the church filed a federal lawsuit to challenge the ruling. It lost in the lower courts. Then, the high court in Washington accepted the case. Kiehne hopes that when the justices finally get to hear the case, they look at it through what she considers to be a very basic lens.

Credit Provided | Alliance Defending Freedom

“Our playground is open not only for our children but children in the community,” she said in a recent interview. “Nothing religious goes on on the playground. So it felt like we were being treated like second-class citizens.”

The state’s position has been defended so far by Attorney General Chris Koster, a Democrat who will be replaced in January by Republican Josh Hawley.

Hawley has filed a brief supporting the church, and Gov.-elect Eric Greitens has also favored the church’s stance, so it’s unclear what effect the change at the top of state government might have on the case.

But arguments against the church’s getting the grant remain. At a forum held by alliance during the summer to discuss the case, attorney Daniel Mach of the American Civil Liberties Union said providing public money to help the church resurface the playground would violate both the state and the federal constitution.

“The church has every right to make capital improvements to its facilities,” Mach said, “but it can’t expect or force taxpayers to pick up the tab.”

How the case unfolded

The case began in 2012 when the church learned of a state program that offered rubberized playground surfaces made from scrap tires. The program is funded with fees imposed on the sale of new tires and is designed to reduce the amount of tires in dump sites.

Trinity submitted an application, saying that it had installed rubber mats in areas under swing sets, slides and climbing units, but pea gravel underneath the mats was eroding and creating a safety hazard. It emphasized that the new surface would benefit not only students in its preschool but children from the community who use the playground after hours.

The Department of Natural Resources, which administered the program, received 44 applications for 14 possible grants. Trinity qualified, but the department refused to give the church the money for the surface, citing this passage from the Missouri Constitution:

“... no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

'No preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.' — Missouri Constitution

Attorneys for Trinity filed suit in federal court, saying that the denial violates the U.S. Constitution’s guarantees of free exercise of religion, freedom of speech and equal protection. After the district court dismissed the suit, the church took its case to the 8th U.S. Circuit Court of Appeals.

There, a majority of a divided panel of judges held that the state acted properly because there was no “break in the link” between state funds and religion. On further appeal, the U.S. Supreme Court accepted the case in January 2016, but it has not yet scheduled oral arguments.

What the state says

In many ways, the case replays the classic tug of war between the two religion-related clauses of the First Amendment: The government cannot establish a religion and cannot prohibit the free exercise of religion.

The brief filed by the state looks at that question and says that its decision isn’t a case of excluding a church from the playground surface program because of religion. Instead, it says, if the Department of Natural Resources had allowed the church to take part, the decision would send a different message: “a message that those who join a particular church’s ministry and thus play at that church are more worthy than those who decline that invitation and play where improvements have not been made because the available State money went to that church.”

'If the church wins this case, it will effectively undo the state constitutional provisions in over three-quarters of the states out there.' — Daniel Mach of the ACLU

Mach of the ACLU argued that the First Amendment doesn’t discriminate but looks out for the interests of both the government and religious organizations.

“This is a rule that protects unwilling taxpayers from funding houses of worship to which they do not adhere,” he told the Alliance Defending Freedom forum. “It is a rule that protects church autonomy. It prevents churches from fighting with each other over government subsidies.”

And, he noted, because just 14 out of 44 applicants received the grants to buy the rubberized playground equipment, the church should not be able to argue that it is being treated unfairly.

The lower courts ruled fairly, Mach said, and the Supreme Court should go along.

“If the state wins,” he said, “ I think this will be par for the course and fully consistent with what the court has done over time.”

“If the church wins this case, it will effectively undo the state constitutional provisions in over three-quarters of the states out there. Thirty-nine states have provisions just like this, and there’s a reason why they have them.”

What the church says

But David Cortman, the Alliance Defending Freedom attorney who has taken a lead role in the case, said that the lower courts have misapplied the so-called separation between church and state in the Trinity case.

“Why does it make any sense to say that if we have a secular preschool right next door, we could put the rubberized surface on that and the kids could play safer,” he said in an interview, “but right next door to them, the kids who happen to attend this preschool that's affiliated with a religious organization, we don't want them to be as safe?

“That doesn't seem to be the way the government should be picking and choosing.”

If the state were to give money to Trinity for the playground, would it free money from the church’s own budget that could then be spent for religious purposes, so the state would be indirectly subsidize religion? Cortman used this analogy to counter that argument:

“If someone's breaking into the school, or it's on fire, you say well, if we send the police there, or the ambulance there or the fire trucks there, that would save them money that they would otherwise have to spend, and they could use that for religious purposes.”

The state’s brief calls that rationale “a farfetched hypothetical. Police and fire protection policies do not differentiate between or express a preference for one possible recipient over another.

“If police and fire chiefs — or individual police officers or firefighters — make such a choice, it is based on the exigencies of the particular, immediate circumstances. Missouri mayors do not direct police or fire chiefs to protect churches rather than other, secular persons or property — or vice versa.”

'You can find thousands of programs, social welfare programs, social services programs, at the state and federal level, where religious organizations are very active feeding people or clothing people or helping the poor.' — David Cortman of the Alliance Defending Freedom

Cortman argues that the program could be set up differently with the same result.

“What if the state basically said we're going to buy all the mulch,” he said, “and we're going to pay for everything, and then you could just come and get it, the rubberized playground, and you can come and get it and put it on.”

And, he added, any practice barring the state from aiding a religious organization is far from absolute.

“You can find thousands of programs, social welfare programs, social services programs, at the state and federal level, where religious organizations are very active feeding people or clothing people or helping the poor,” Cortman said.

Trinity describes its preschool as a place that “incorporates daily religion and developmentally appropriate activities in a preschool program” and “provides opportunities for children to grow spiritually, physically, socially, emotionally and cognitively.”

But Kiehne, the preschool’s director, said the religious aspect of the program doesn’t take place on the playground equipment, and the church shouldn’t be left out of the safety program.

“We just felt like kids are kids and all kids should be safe on the playground,” she said.

What happens next?

Though it’s been nearly a year since the Supreme Court agreed to hear Trinity Lutheran’s appeal, no oral arguments have been scheduled. Cortman thinks the vacancy caused by the death of Justice Antonin Scalia is a factor.

“I think it is fair to assume they are waiting for the ninth justice,” he said, adding that the case crosses over ideological lines. Because lower courts have split on the issue, Trinity Lutheran is the kind of case that the Supreme Court can use to establish uniformity.

“If you end up having a 4-4 decision so the lower court decision stays in place,” he said, “that doesn't solve the problem.” 

With Koster’s term as attorney general winding down, his office declined to comment on the case. Hawley, who takes over next month, criticized Koster’s acting on behalf of the state during their campaign, saying in a blog post:

“Chris Koster knows this law blatantly discriminates against religious organizations and it’s time he admits he’s been wrong to defend the case.”

He also filed a friend of the court brief on behalf of Trinity, saying that when the church’s application for the grant money was rejected, “the state put to Trinity Lutheran a stark choice — abandon its religious affiliation in order to qualify for the state’s grant program, or adhere to its religious convictions but forego improving the safety of its playground. That violated the Free Exercise Clause.”

'If somebody wants to take their picture, they'll say hi, and talk to whoever it is, smile for the camera. They're kids. They like the attention.' — Annette Kiehne, preschool director at Trinity Lutheran Church, Columbia, Missouri

Cortman said that even if Hawley doesn’t pursue the case, someone else could take up the state’s position. And, he added, the principle involved shouldn’t depend on who is the attorney general at any given time.

“It's going to be beneficial to both the state and the religious preschool,” he said, “to get an answer to the question of can this state or any other state treat a religious organization worse than a secular organization based on the federal constitution.”

Meanwhile, on the Trinity playground, pea gravel remains the surface for the most part, though bark mulch has been used on a small portion where younger children play. And Kiehne said the children whose safety she wants to protect are pretty much oblivious to the legal hubbub surrounding them – though they do take notice when visitors come around.

“They're just out there playing, having fun,” she said. “That's normal for them. Then if somebody wants to take their picture, they'll say hi, and talk to whoever it is, smile for the camera. They're kids. They like the attention.”

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