ROBERT SIEGEL, HOST:
At the U.S. Supreme Court today, a clear majority of justices seemed troubled by a Missouri program that bars state money from going to religious schools for playground improvement. Thirty-nine states have constitutional provisions that bar taxpayer funds from going to religious schools, provisions that have been a major obstacle to the school choice movement.
Today's case from Missouri is an attempt to lower that wall separating church and state. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The Trinity Lutheran Church in Columbia, Mo., owns and operates a preschool learning center. It applied for a state grant to rubberize its playground but because its mission is avowedly religious, the state turned down the application, citing language in the state constitution which explicitly bars state funds from going directly or indirectly to any religious sect or denomination.
The church challenged the denial in court, appealing all the way to the Supreme Court. On the steps of the high court this morning, Annette Kiehne, the director of the school, put the argument this way.
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ANNETTE KIEHNE: Safety shouldn't hinge on whether a child is religious or they are playing on a playground at a religious school or a secular or a public institution.
TOTENBERG: But James Layton, representing the state of Missouri, countered that the Supreme Court has never required states to provide direct government grants to churches.
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JAMES LAYTON: Almost 200 years ago, the people of the state of Missouri, adopting language that finds its origin in the Founding Fathers, in Virginia and elsewhere, decided that we were not going to tax people in order to give money to churches.
TOTENBERG: Inside the courtroom, even some of the court's liberals signaled that they're bothered by the grant denial but neither side had an easy time of it. Layton, arguing for the state, clearly had the harder task, struggling as justices pressed him about where to draw the line between those things that a church is clearly entitled to - like police and fire protection - versus state aid for school improvements and programs.
We don't want to be in a position where we're choosing among churches and making grants, he said, or making improvements in church property. Those are legitimate objectives for the state in avoiding an unconstitutional entanglement with religion. Providing police and fire protection is different, he said, because the state is not taking money from the Treasury and giving it to the church.
Justice Samuel Alito pressed the point, noting that there are federal programs that give grants to reinforce security at synagogues, mosques and churches that are at risk of terrorist attacks.
Justice Breyer - if providing police and fire protection for the church school is to protect health and safety, how does the state deny money for the same place for helping children not fall on the playground, cut their knees, get tetanus, break a leg, et cetera? What's the difference?
Justice Kagan - we have a strong constitutional principle that says when we have a program for non-religious things like a playground resurfacing, you're not disentitled from that program because you're a religious institution.
Under that theory, replied Layton, why wouldn't the state have to pay to paint the sanctuary if it's found that there's lead paint there? In this case, he added, not everyone gets a grant. This isn't a universal program. Only a selective few schools get the grant.
Arguing on behalf of the church, lawyer David Cortman took the view that as long as the program being funded is not religious, if it's open to everyone else, religious schools can't be excluded.
Justice Kennedy, eyebrows raised - are you saying that religious status can never be the basis for a government action or ordinance?
Replied Cortman - why would someone's religious status matter in the first place?
Justice Ginsburg - this court said long ago, in no uncertain terms, that the framers did not want tax money imposed to pay for building or maintaining church property. Doesn't that fit this case?
At the end of the day, the quest for the court may be whether the justices can agree on an approach. As Justice Kagan put it, the church-state divide is a, quote, "fraught issue." It's an issue in which states have their own long standing law and nobody is exactly sure that they have it right. In view of that, Kagan said, there's something attractive about having some play in the joints where states can make their own choices. Just how much play is the question. Nina Totenberg, NPR News, Washington.
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