Tag: church schools

THE GRAVEL CAN BE UNFORGIVING

Today the United States Supreme Court included the title of this post, which has been quoted here from that opinion, in its opinion determining that the state of Missouri violated the First Amendment by refusing to award grant money to an otherwise eligible non-profit for the replacement of pea gravel playgrounds with rubber matted playgrounds.  The rubber matting is poured and made from the recycling of tires.  The non-profit was a church.  Missouri refused to allow the church to be eligible for the playground grant because the Missouri constitution requires separation of church and state and the court in Missouri deemed playground resurfacing grants as an aid to established religion.

Thus, a non-profit that qualifies for a government benefit cannot be excluded simply because it is a church or para-church organization.  Trinity Lutheran Church v Comer, Slip. Op., ___ US ___ (June 26, 2017).

The church qualified for the grant because it was a non-profit, it served low income children in its school, its school was open to any student of any faith and not just church or denomination members, and the playground was used by the community as well as the school.  And, as the Court noted:  “the gravel can be unforgiving.”

While many will see this decision as both enlightened and fair to taxpayers that happen to be religious rather than permitting those taxpayers to be penalized because they have organized themselves into a church, government money should always be accepted cautiously.  It rarely is freely given and usually comes with compliance obligations.  For example, to qualify, the church also had to make a showing that it was developing or had a recycling program of some type.  While that is probably innocuous, other requirements in other programs might not be.

COMPELLING GOVERNMENT INTEREST IS ALWAYS COMPELLING – ESPECIALLY WHEN IT IS ABOUT TRAFFIC

There is nothing more annoying than when a statute passed to remediate a wrong is simply defined out of existence by judicial fiat.  The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq is such a statute.  The statute sets forth:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

One would think the word “compelling,” the word “and” and the word “least” are simple and clear.  But, not so in the United States Court of Appeals for the 6th Circuit.  In the 6th Circuit, in Livingston Christian Schools v Genoa Charter Township, Slip. Op. (6th Cir. 2017), it took 22 pages to sweep these three words out of the way.

In order to deny a church and a religious school a “special use permit” for the school, the governmental interests that were compelling were:  traffic, that the church, not the school because it was a separate entity leasing space from the church, had a “history of failing to comply with its previous special-use permits” by being “disruptive,” and “inconsistency with the single family residential zoning of the surrounding area.”  Compelling these reasons were not by any rational view.

The 6th Circuit has a history of religious organization hostility and proudly recited it in the opinion.  For example, the 6th Circuit held in 2007 that denying a building permit so a church could build a multi-purpose building including a gymnasium was a “mere inconvenience” and not a “substantial burden.”

In the Livingston Christian Schools opinion, the 6th Circuit held that the school had another piece of property available to it that was only 12.1 miles from the subject property.  In other words, parents would have to drive in the morning and in the afternoon 25 miles to cover the round trip during the high traffic times of the day in a suburban traffic setting.  (In Oklahoma City, where I am located, we only have rush thirty minutes but my friends on both coasts are envious.)  I rather suspect that if the traffic was as compelling a governmental interest as the 6th Circuit held it to be, then that mileage would have strangled the school in short order.  The court noted the school had 139 students before its move to the church property, might have had 190 afterwards, but with the uncertainty of location looming because of the permit denial, might have an uncertain future.  That was not, however, “substantial.”

The 6th Circuit was critical of the school for not providing financial records or enrollment records to prove the necessity of its move to the church property it wanted to lease.  Given the enrollment noted above, it is surprising the school had sufficient resources to litigate at all, much less appeal.