In a case awaiting review by the Supreme Court, the Pacific Legal Foundation has filed a friend-of-the-court brief making an argument for one of the nation’s fundamental principles—the equal protection of the law.
The case is Trinity Lutheran Church of Columbia v. Sara Parker Pauley. The church is located in Columbia, Mo., and Ms. Pauley is director of the Missouri Department of Natural Resources.
In 2012, Trinity Lutheran applied for a grant from the department’s Scrap Tire Program. The church did so through its Child Learning Center, a day care and preschool located at the church. The grant would have allowed the church school to make its playground safer by replacing the pea gravel ground-cover with a forgiving rubber surface made from recycled tires.
The natural resources department, which administers the Scrap Tire Program, ranked Trinity Lutheran’s application fifth best qualified out of 44 applications submitted in 2012. The department approved 14 of the applications, but rejected Trinity Lutheran’s.
The department based its denial of the church’s application on a provision in the state constitution providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” As U.S. Court of Appeals for the Eighth Circuit judge Raymond Gruender said in a partial dissent, “But for the fact that the Learning Center was run by a church, it would have received a playground-surfacing grant.” The state made grants to less qualified nonreligious applicants.
Trinity Lutheran sued and has lost in lower courts. Now it will make its argument before the Supreme Court. The church is making three claims: one under the First Amendment’s establishment clause, a second under its free exercise clause, and a third under the Fourteenth Amendment’s equal protection clause.
It is the equal protection argument that is most interesting and is the focus of the Pacific Legal Foundation’s supporting brief. The foundation argues that, while equal protection cases “most commonly address discrimination on the basis of race,” the Supreme Court’s equal protection decisions “reflect the view that differential treatment on the basis of religion is just as intolerable.”
Courts “generally analyze religious liberty claims under the religion clauses,” the brief notes, but “unequal treatment on the basis of religion falls within the purview of the equal protection clause.” The foundation says that Missouri violated the Constitution by excluding Trinity Lutheran from the Scrap Tire Program on the basis of religion.
Treating people differently on the basis of race is subject to “strict scrutiny,” the Court’s “most stringent standard of review.” The Pacific Legal Foundation argues that “strict scrutiny is just as appropriate” when classifications based on religion are under review. The foundation notes that lower court judges have applied strict scrutiny or its equivalents in a number of religious discrimination cases. Most notable perhaps is Hassan v. City of New York, which challenges an NYPD program monitoring Muslims after 9/11. The Third Circuit ruled last year in the case that “it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny.”
Under strict scrutiny, a challenged action must not only further a compelling state interest but be narrowly tailored to further that interest. The Pacific Legal Foundation says that in its treatment of Trinity Lutheran, Missouri fails both parts of that test.
“The only compelling interest the department has claimed is an interest in complying with the state constitution’s establishment clause,” the Pacific Legal Foundation argues. And “that interest cannot justify targeting religion in a way that violates the federal Constitution.” Here the foundation offers instruction in constitutional law by quoting from Reynolds v. Sims, one of the best-known redistricting cases from the 1960s: “When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.” That is to say, the Constitution of the United States trumps state constitutions.
And even if Missouri’s actions were in pursuit of a compelling state interest, the Pacific Legal Foundation contends those actions were not narrowly tailored. “[F]unding safer playgrounds,” the foundation argues, “does nothing to promote religion at the expense of secular activities.” Or, to put it in the words of Judge Gruender, schoolchildren “playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.”
By taking seriously unequal treatment on the basis of religion, the Pacific Legal Foundation has offered an understanding of equal protection and what it entails that is worthy of the Court’s attention. It has also shown how Trinity Lutheran could be decided—which is to say, narrowly (as our eight-justice Court might prefer), by distinguishing between religion and a playground.
