Where the Rubber Meets the Road

Reuel S. Amdur January/February 2017
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Trinity Lutheran Church of Columbia, Missouri, runs a licensed preschool and day-care program. This program includes religious teaching. There is also a recreation area for students. To quote the opinion of the Eighth Circuit Court of Appeals, the state’s Department of Natural Resources “offers Playground Scrap Tire Surface Material Grants, a solid waste-management program. The grants provide DNR funds to qualifying organizations for the purchase of recycled tires to resurface playgrounds, a beneficial reuse of this solid waste.” This play area is open to the public when not in use for the preschool and day-care program.

The department rejected the church’s application for a grant because the Missouri constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church.” Trinity Lutheran appealed to the courts. They lost before district and appeals courts. Next stop—the Supreme Court.

A number of issues are raised by this case. While most people will agree with the principle of separation of church and state, the issue is one of boundaries. In her book Liberty of Conscience (New York: Basic Books, 2008), Martha Nussbaum tries to set some limits: “The modern state is ubiquitous in people’s lives, and if we really tried to separate church from state all the way, this would lead to a situation of profound unfairness. Imagine what it would be like if the fire department refused to aid a burning church, if churches didn’t have access to the public water supply or the sewer system, if the police would not investigate crimes on church property, if clergy could not vote or run for office” (p. 11).

Nussbaum argues that the kind of strict (in her view, rigid) policy of church and state embodied in the government’s decision in cases such as this dates back to the nineteenth century and finds its roots in anti-Catholic sentiment and fear of a Catholic takeover.

While lawyers and scholars such as Nussbaum parse case law to come to a position, here we attempt to look at some of the issues to focus on key points to be considered, in some instances not focusing on legal decisions, in other cases indeed considering them as well.

To begin, consider the role of the Department of Natural Resources. The department has a problem on its hands: a huge accumulation of used tires that need to be disposed of. One solution taken is to provide grants to approved organizations to purchase ground-up tires for use on playgrounds. This solution has something of a quid pro quo quality to it. You help us reduce the quantity of old tires we’re stuck with. We help you to use a byproduct of this waste in surfacing a recreational site. In these terms, any church-state issue appears rather tenuous. The situation becomes even more tenuous when we remember that the general public has access to the play area when not in use by the early-education program.

Yet the Trinity Lutheran program does include a religious education component. How serious is this as a drawback to inclusion of the church in the tire-recycling exercise? Because the general public has access to the grounds, and because the ground tires supposedly make the grounds more suitable, does refusing Trinity Lutheran their request for a grant constitute a disadvantage to the community in general—perhaps even in terms of safety? To put it another way, had the department granted Trinity Lutheran the subsidy on grounds of general welfare in the play area, would the courts have upheld a challenge to that decision?


Nussbaum’s argument in supporting a looser arrangement looks at various scenarios. For one, she comments with approval on a Supreme Court ruling upholding a New Jersey law providing transportation for schoolchildren not only to public but also to other nonprofit schools, most of which would be Catholic parochial schools. Let us for the moment suppose that the Court had held the opposite. Would the child attending the parochial school have had the right to the bus trip to the public school, across the street from their own school?

She also cites another case, in which New York City used federal money for remedial reading in public and parochial schools. While the Supreme Court ruled against the service provided to parochial schools by 5 to 4, the dissenters and Nussbaum urged that the public interest in children learning to read should be paramount in this case. On the other hand, one might argue that the parochial schools should have the burden of providing their own remedial program. If the government covers it, it relieves the parochial schools of the need to do so and permits them to use its funds for sectarian purposes.

But how far should such disallowance go? Public health nurses provide service in public schools. Should they also go to parochial schools? The general health needs of the community require an adequate level of immunization, and thus the nurses need to get to as many children as possible. In this situation, strict separation can be seen as a health hazard.

Nussbaum argues that the Supreme Court’s tilt toward a more rigid separatist position goes hand in hand with a liberal fear of the Catholic Church and a hostility to its ideology. The two come to the same thing to a large extent. In her treatment of this question she attempts to be evenhanded.

On the one hand, she points to the critiques of the church by the likes of Paul Blanshard, whose books American Freedom and Catholic Power and Communism, Democracy and Catholic Power warned of the danger of the political power and ambition of the Catholic Church. Nussbaum argues that he ignored Catholic thinkers who were firm democrats, such as Jacques Maritain and John Courtney Murray. However, while there were such Catholic thinkers, they can hardly be said to have established the Catholic brand in the past. Nussbaum herself provides the evidence: “Many Catholic bishops in the U.S. openly favored the rise of fascism in Italy and Spain, spoke in glowing terms of Mussolini’s achievements, praised Franco, and failed to deplore fascist attacks on liberty. The popular ‘radio priest’ Father Charles Coughlin, who used his program to fan the flames of anti-Semitism in the 1930s, became a symbol of what many Americans feared.”

The Catholic Church today is still in many ways socially conservative. However, it consciously avoids encouraging extreme behavior. Because of the attacks on abortion providers, it now refrains from labeling doctors and clinics involved as “baby killers,” “murderers,” and such. The bishops do not want to be complicit in injury or murder of doctors.

We face conflicting pulls. On the one hand, we want religious freedom in all its fullness and we do not want the imposition of faiths in which we do not believe. On the other hand, religious elements are mixed with social goals, which we see as positive. How can we maximize the good and preserve the state’s religious neutrality to the greatest extent possible?

Then permit us a third hand. How do we protect churches from the state? To state the obvious, churches that are opposed to gay marriage do not perform them, and the decisions recognizing them should not be seen as a reason to force churches to perform them. Nor do our demands for equality justify forcing the Catholic Church to have female priests.

In Canada, churches and charities were put under pressure by the previous Conservative government to minimize “political” activity. One charity was told that it could not have as its stated purpose to work to abolish poverty. Too political. But it was acceptable for it to work to alleviate poverty. The pressure took the form of threatening charitable status, the ability to issue receipts for tax purposes.

A few religious institutions voluntarily reject tax-free status, but they are very few indeed. How many churches would try to survive without the right to issue such receipts?

Getting back to Trinity Lutheran’s play area. How deeply is the wall between church and state breached by some money to cover the ground with shredded rubber for a children’s play area? The area is used in a program that includes religious education, but it is also a playground open to the general public. If we really want that wall to be tight, should the state forbid all non-Lutherans from using the play area?

And as for the Department of Natural Resources, what are they going to do with all those tires?

Article Author: Reuel S. Amdur

Reuel Amdur writes from Val-des-Monts, Quebec, Canada.