If you have kids, you’ve probably seen playgrounds where the ground is covered — for safety — with a springy rubbery surface, instead of soil or gravel. A Missouri program gives grants to organizations that want to resurface playgrounds with this material, which is often made from recycled tires. There aren’t enough grants to go around to all the applicants, so the program relies on pretty objective evaluation criteria.

Trinity Lutheran Church’s application was, according to the U.S. Court of Appeals for the 8th Circuit, “ranked fifth out of forty four applications in 2012, and . . . fourteen projects were funded.” But Trinity’s application was rejected; in the words of the Missouri Department of Natural Resources,

The department is unable to provide this financial assistance directly to the church as contemplated by the grant application. Please note that Article I, Section 7 of the Missouri Constitution specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

The Supreme Court has just agreed to decide whether this exclusion of religious institutions from a generally available funding program violates the First Amendment (Trinity Lutheran Church of Columbia, Inc. v. Pauley).

In Locke v. Davey (2000), the court upheld (by a 7 to 2 vote) a state program that provided college scholarships but excluded students who majored in devotional theology. Though the Free Exercise Clause generally bans discrimination against religious institutions, religious people and religious practices when it comes to regulations, the court said that at least some kinds of discrimination in funding are allowed. But Locke didn’t make clear how far this principle went. Then Chief Justice William Rehnquist’s majority opinion didn’t set out a clear rule, but just laid out various facts that it viewed as justifying the program. For instance:

Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders . . . . Most States that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate, as Justice Scalia contends, that these provisions would not have applied so long as the State equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.

Far from evincing the hostility toward religion which was manifest in Lukumi, we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited. . . . And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses [though they cannot major in devotional theology -EV]. . . .

What happens when some of these facts are absent — as, for instance, when the money would be spent on a safety feature for children at church preschools? The court didn’t make it clear. Unsurprisingly, lower-court judges have disagreed on the subject; the 8th Circuit panel, for instance, split 2 to 1 on whether the exclusion under the Missouri program was constitutional.

The two dissenters in Locke, Justices Antonin Scalia and Clarence Thomas, supported, generally speaking, a broad no-discrimination-against-religion rule, including as to funding programs. It seems possible (though not certain) that Chief Justice John Roberts and Justice Samuel Alito would join them, either generally or on the facts of this case. The question then is whether at least one of the other justices (perhaps Anthony Kennedy?) would likewise either reconsider Locke, or, more likely, conclude that Locke doesn’t apply to a program that doesn’t involve funding going for devotional theology education as such.

I think Trinity Lutheran should win here; I think the dissenters had the better view in Locke v. Davey, but I don’t think it should be broadened to cases such as this one. But in any event, it will be fascinating to see what the justices do with this. To see the petition-stage briefs, go to the SCOTUSblog page for the case.