Earlier this year, the U.S. Supreme Court agreed to consider Trinity Lutheran Church v. Pauley, a 2013 lawsuit filed by the church after the state of Missouri rejected its application for a grant to replace its preschool’s playground pebbles with repurposed rubber from old tires.
The State’s grounds for denial? The preschool was ineligible because it was run by a church, citing an 1875 Missouri constitutional amendment — known as the Blaine Amendment — prohibiting public funds from being used “in aid of any church.”
Here, David O. Middlebrook — a founding shareholder of Anthony & Middlebrook and the Church Law Group in Grapevine, TX, and Church Executive “Legal Realities” Series author — offers his take on this potentially pivotal case for churches.
Church Executive: David, why do you think this case could turn out to be important?
David O. Middlebrook: This case has the potential to enhance or limit the flow of government funding to religious organizations through grants and subsidies. There has been a lot of confusion in this area, particularly with faith-based grants through the White House’s Office of Faith-Based and Neighborhood Partnerships. Many individuals are under the mistaken belief that no government agency can fund a religious organization’s projects. While government funding is limited to secular projects, we can see — as represented in this case — some states go further by implementing complete prohibitions on government funding to religious organizations.
The importance of the underlying case really comes down to what the parties are asking for. The State of Missouri –represented by Sara Parker Pauley, Director of the Missouri Department of Natural Resources — is asking the Supreme Court to uphold the Missouri Constitution, which prohibits the distribution of state funds to be used to fund any religious organization, for any reason.
The Petitioner (Trinity Lutheran Church of Columbia, Inc.) is asking for churches to be considered for grants along with secular organizations, as long as they meet secular criteria. If the State of Missouri wins, it could embolden other states to enact similar constitutional provisions; if the Petitioner wins, a lot more churches will be seeking state funding for their projects in their community.
CE: So, what’s the Pauley case all about, in plain English?
Middlebrook: In a nutshell, and skipping the tangential issues and background, this case is about whether state governments can prohibit funds from going to religious organizations. It is not about whether religious organizations can receive government funding; this already happens. As I said before, the White House’s Office of Faith-Based and Neighborhood Partnerships has a history of funding projects through religious organizations. In this case, Trinity Lutheran Church applied under a Missouri subsidized program to have its playground resurfaced with ground-up tires, and the record is clear that its application would have been granted but for its identity as a church. The federal courts reviewing the denial of the application concluded that the prior decisions of the Supreme Court required them to agree with Missouri and, in particular, that Missouri law could validly prohibit state funds from being used to benefit a church, even if the church would have qualified but for its identity as a church. Trinity Lutheran asked the Supreme Court to review the case, and the Court agreed to do so — it did not have to, so perhaps the Court is willing to consider expanding religious organizations rights under state law.
CE: What would be the practical effect of a Supreme Court reversal of the Pauley case?
Middlebrook: If the Court sides with the State, you will likely see a measurable increase in prohibition of funds distributed to religious organizations. If the Court sides with Trinity Lutheran, this may result in increased funds available to churches for community projects.
Remember, regardless of the outcome of this case, the funding must be used for a neutral purpose, not religious in nature. Practically, this means that financial grants or funding from a government to a church may not directly and conspicuously benefit a “religious” activity of the church. Thus, it is possible that the government funding can be used by the church to build a playground that will be used by church members and the broader community, whereas the grant could not be used for a religious purpose such as buying new hymnals or bible study curriculum.
CE: What would this mean for the readers of Church Executive?
Middlebrook: In this day and age when churches are asked to carry a heavier burden in their communities because of the cutbacks in local, state and federal services, a less-hostile attitude toward churches when they apply for government grants and subsidies would be of direct benefit to your readers and their operating budgets. Perhaps not immediately, but if the playing field can be leveled, over time this could turn out to be a major sea change for churches.
CE: For our readers who would like to learn more about the Pauley case, what resources are available to them?
Middlebrook: Go to the SCOTUS blog on the Pauley case and you can find links to PDF copies of the 8th Circuit opinions and the various filings with the Supreme Court leading up to the Court’s decision to review the case.
CE: What’s the timetable, here?
Middlebrook: The case will be set for oral argument, but that won’t be scheduled until the Court’s 2016-2017 Term starting in October, meaning that the decision won’t be handed down until late this year or 2017. But there are several wild cards here, starting with the recent death of Justice Scalia and that 2016 as an election year, which will likely tangle up any appointment of a replacement Justice, possibly delaying that appointment until the next President takes office.
Right now, there is a distinct possibility that the Pauley decision could end up being a 4-4 tie, having the effect of affirming the 8th Circuit decision below “by an equally divided court” (meaning that the Supreme Court’s decision is not treated as a binding precedent) and punting the issue to a future case.
The materials in this article are provided for informational purposes only and do not constitute legal advice. This article is intended, but not promised or guaranteed to be current, complete or up-to-date and should in no way be taken as an indication of future results. Transmission of the information in this article is not intended to create — and the receipt does not constitute — an attorney-client relationship between sender and receiver.
David O. Middlebrook is a founding shareholder of Anthony & Middlebrook and the Church Law Group in Grapevine, TX. His clients include high-profile charitable and religious organizations, both domestic and international.