In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school.

In Trinity Lutheran Church of Columbia v. Pauley the Supreme Court will decide whether Missouri can refuse to allow a religious preschool to receive a state grant to resurface its playground based on Missouri’s “super-Establishment Clause.”    

The Missouri Department of Natural Resources (DNR) offers grants to “qualifying organizations” to purchase recycled tires to resurface playgrounds. The DNR refused to give a grant to Trinity Church’s preschool because Missouri’s constitution prohibits providing state aid directly or indirectly to churches.

The majority of the state constitutions contain “Blaine Amendments” or “super-Establishment Clauses” whose prohibitions against aid to churches and religious schools exceed the requirements of the federal Establishment Clause.     

Trinity Church argues that excluding it from an “otherwise neutral and secular aid program” violates the federal constitution’s Free Exercise and Equal Protection Clauses, which Missouri’s Blaine Amendment may not trump.

In Locke v. Davey (2004) the Supreme Court upheld Washington State’s “super-Establishment Clause,” which prohibits post-secondary students from using public scholarships to receive a degree in theology. The lower court concluded Locke applies in this case where: “Trinity Church seeks to compel the direct grant of public funds to churches, another of the ‘hallmarks of an established religion.’”

The Supreme Court must decide whether to apply Locke v. Davey narrowly or broadly in this case. Justice Scalia foresaw this dilemma in his dissent in Locke noting that its “holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go.”

Trinity Church argues the Court should read Locke narrowly and that “[t]his case is as far from Locke as one can conceive.” “Trinity Lutheran sought to participate in a generally available public benefit program that provides recycled rubber flooring to protect children from cuts and bruises on the playground. Locke rejected a free exercise challenge to compel a state to fund the religious training of clergy.”

At least half the states with Blaine Amendments have refused to defend them in an amicus brief filed by Nevada. Amicus briefs supporting Missouri have not yet been filed, so it is unclear whether any states will defend their Blaine Amendments.