When The Separation Of Church And State Leads To Children With Scraped Knees

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Publish Date:
April 14, 2017
Author(s):
  • Will, George F.
Source:
The Washington Post
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Summary

When not furrowing their collective brows about creches and displays of the Ten Commandments here and there, courts often are pondering tangential contacts between the government and religious schools. Courts have held that public money can constitutionally fund the transportation of parochial school pupils to classes — but not on field trips. It can fund nurses at parochial schools — but not guidance counselors. It can fund books — but not maps. Daniel Patrick Moynihan wondered: What about atlases, which are books of maps? On Wednesday, the Supreme Court will consider the constitutional significance of this incontrovertible truth: “A scraped knee is a scraped knee whether it happens at a Montessori day care or a Lutheran day care.”

That assertion is in an agreeably brief amicus brief written by Michael McConnell, a Stanford University law professor specializing in church-state relations. He requires just 13 pages to make mincemeat of Missouri’s contention that a bit of 19th-century bigotry lodged in its constitution requires it to deny shredded tires to Trinity Lutheran Church in Columbia, which runs a preschool.

That assertion is in an agreeably brief amicus brief written by Michael McConnell, a Stanford University law professor specializing in church-state relations. He requires just 13 pages to make mincemeat of Missouri’s contention that a bit of 19th-century bigotry lodged in its constitution requires it to deny shredded tires to Trinity Lutheran Church in Columbia, which runs a preschool.

Practices during the Founders’ era demonstrate, McConnell argues, that “including religious groups in neutral public benefit programs was not viewed as an establishment.” And: “Shredded tires have no religious, ideological, or even instructional content . . . a rubberized playground is existentially incapable of advancing religion.”

Missouri cites, in defense of its practice, an utterly inapposite case in which the Supreme Court upheld a state’s refusal to fund students seeking degrees in devotional theology, even though it funded degrees in secular subjects. This involved entirely different issues than Missouri denying an organization access to a public safety benefit simply because the organization is religious. Spreading shredded tires beneath a jungle gym hardly (in the Supreme Court’s language) “intentionally or inadvertently inculcates particular religious tenets.” And Missouri’s denial of this benefit is, McConnell writes, “the clearest possible example of an unconstitutional penalty on the exercise of a constitutional right,” the free exercise of religion.

“The religious status of the Trinity Lutheran day care bears not the slightest relevance to the purpose of the state’s program.” Which pertains to knees.

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