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Fungibility Key in Trinity Lutheran Case

— April 26, 2017

There’s an upcoming case at the Supreme Court that has some rather far-reaching implications. Trinity Lutheran v. Comer concerns a Missouri recycling program, a religious school, and a whole passel of issues. In this case, religious freedom advocates seem to claim that grant money isn’t nearly as fungible as when it goes to Planned Parenthood.

There’s an upcoming case at the Supreme Court that has some rather far-reaching implications. Trinity Lutheran v. Comer concerns a Missouri recycling program, a religious school, and a whole passel of issues.

The Supreme Court, back up to full staffing levels, finally agreed to hear the case of Trinity Lutheran Church in Columbia, Missouri, which operates a daycare and preschool program as part of its religious mission. The church applied for a grant from the Missouri Department of Natural Resources to resurface its playground with rubber from recycled tires. This surface is softer and more squishy than conventional concrete surfaces and can be safer for children to run and play – and fall – upon. The State, which funds the resurfacing for nonprofits from a tax imposed on the sale of new tires, approved the project, ranking it fifth out of 44 applications submitted in 2012, high enough to be awarded a grant.

Only one problem: Trinity Lutheran is a religious organization. Section 7 of the Missouri state Constitution mandates that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” Since public funds pay for the recycling program’s resurfacing projects, the Trinity Lutheran request was scrapped.

The church sued, but lost. However, advocates say that spending money to revamp a religious school’s playground is utterly secular. It’s not like the money is going into church coffers, or even to an academic program that emphasizes a faith-based worldview. It’s this last bit that is of extreme interest to religious freedom advocates and civil libertarians alike, and would have important implications for school choice and the free exercise of religion as required by the First Amendment.

This is where framing the issue matters mightily. Does providing public funds to Trinity Lutheran constitute a violation of the Establishment clause by benefiting their sect above others? Or, as attorneys for the church posit, does denying the religious school a grant that a secular, nonprofit school would have won mean that the government is making it harder for members of the church to express their religious beliefs, a clear First Amendment breach? If Trinity Lutheran claims that the rubbery playground surface is clearly a secular expenditure but that failing to provide a rubbery surface prevents freedom of worship, they have some ‘splainin’ to do.

A work crew spreads rubber mulch, made from shredded recycled tires, on a playground.
A work crew spreading rubber mulch on a playground. Recycled rubber mulch made from old tires makes for a safer playground surface. Photo by VSPYCC, via Flickr. CC BY 2.0

In my opinion, there’s another issue to consider: fungibility. This is something we hear about more often in the abortion debate. The 1976 Hyde amendment, regularly re-upped by Congress until it was made permanent on January 24th, 2017, prohibits the use of federal taxpayer funds for abortion services. This is the lynchpin upon which the effort to defund Planned Parenthood turns. While Planned Parenthood doesn’t use federal funds to provide abortions, they do use these funds to subsidize other health care services for those who need them. However, anti-abortion advocates say that any taxpayer money that Planned Parenthood uses to provide, say, pap smears, frees up other private donations for abortions, so it’s effectively the same thing.

If providing funds to Planned Parenthood that are earmarked “anything but abortion” is considered taxpayer funding of abortions, it’s equally true that providing public funds to resurface the Trinity Lutheran playground frees up privately donated money for their religious mission (assuming they’d still pursue a safer playground even without the State handout). Alternatively, if the Trinity Lutheran grant is purely secular, then there is no legitimate moral reason to defund Planned Parenthood beyond conservatives’ subjective distaste for the choices other people make. Either way, Trinity Lutheran v. Comer will be an interesting case to watch as the Supreme Court takes it up this year.


Playground Case Could Breach Barrier Between Tax Coffers, Religious Schools
Trinity Lutheran v. Comer: 7 Things to Know About a SCOTUS Preschool Case With Big School Choice Implications
SCOTUS playground case can end anti-religion, anti-Catholic law
Planned Parenthood: Money Isn’t Fungible, Just Truth
“Fungibility”: The Argument at the Center of a 40-Year Campaign to Undermine Reproductive Health and Rights
State of Missouri Constitution (PDF)

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