EDITOR’S NOTE: Michael Whitehead has practiced law in Missouri for more than 40 years. He practices with his son, Jonathan, in suburban Kansas City, and he serves as MBC general counsel and represents numerous individuals and ministry organizations. Both Mike and Jonathan are on the legal team defending Trinity Lutheran Church in Columbia, in a religious liberty case that was heard at the U.S. Supreme Court this spring. A ruling on the case is expected by the end of the month, before the court goes out of session.
KANSAS CITY – Five hundred years after Martin Luther posted his 95 Theses, challenging the Catholic Church, a small Lutheran church in Columbia stood in the U.S. Supreme Court challenging an anti-Catholic state law, with attorneys who are Southern Baptists. My son Jonathan Whitehead and I were the Baptist attorneys. New generations are fighting for religious liberty.
Trinity Lutheran Church of Columbia v. Comer involved the Scrap Tire Surfacing Material Program of the State of Missouri (http://tinyurl.com/m5fm8da), which offered matching grants to private schools, parks, day care centers and other non-profit entities with playgrounds. Using the rubber from recycled scrap tires, and the 50-cent scrap tire fee collected on the sale of new tires in Missouri, the Department of Natural Resources provided shredded tires and a financial rebate to the winners of a competitive grant review process that evaluated the public benefit. In this way, the public interest in keeping old tires out of fields, streams and landfills was served. In addition, the public interest in playground safety for neighborhood kids was promoted. It seemed like a win-win – until TLC applied and won a grant – but then was told, oops, the state cannot provide funds to a church. The state, in fact, asserted its duty to discriminate against churches based on a clause in the Missouri Constitution, Art. 1, Section 7, which says “no money shall ever be taken from the treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”
The “no aid” clause is part of an 1875 amendment, a variation of the so-called “Blaine Amendments,” named after post-Civil War congressman James G. Blaine of Maine, who promoted such “strict separation” amendments around the country, adopted eventually by 39 states. The target of Blaine Amendments was understood to be the Catholic Church and its parochial schools, which Baptists and other protestants did not want to fund with tax dollars. (We still don’t.)
I was local counsel for the Lutheran church when the complaint was first filed in federal district court in Missouri in 2013. My son, Jonathan, a 2004 Harvard Law graduate who practices with me in suburban Kansas City, was cocounsel with me on the appeals. When the Supreme Court agreed to hear an appeal, Jonathan sat at counsel table during oral argument along with the legal team from Alliance Defending Freedom. (ADF). It is hard to put into words the satisfaction and joy of working with my son on a religious liberty case before the U.S. Supreme Court. It was also deeply encouraging to witness a new generation of Christian attorneys on our team who have both zeal and knowledge for this cause. New generations are fighting for religious liberty. I thought back to my first case before the Supreme Court, over 35 years ago. It was a different generation of lawyers and justices. I was a 31-year-old co-counsel with my 35-year-old partner, James M. Smart, Jr., in the case of Widmar v. Vincent. (454 U.S. 263, 1981) Clark Vincent was a member of a campus student group sponsored by a local church in Kansas City named “Cornerstone.” Gary Widmar was the Dean of Students at the University of Missouri in Kansas City, who denied meeting space in the student union to the Cornerstone students because of the State’s policy of “strict separation of church and state.” Legal counsel for the university said the denial was based, in part, on Missouri’s “no aid” clause. The student union was built with tax dollars, he reasoned, so providing space and utilities was at least indirect financial aid to a church group. When we asked to meet on the lawn under a shade tree, the response was – tax supported grass, tax supported trees—anything owned by UMKC was still financed by the public treasury.
The trial court agreed with the university: the state had a right to uphold stricter separation between church and state was required by the federal Establishment Clause. We won at the 8th Circuit Court of Appeals. Then the U.S. Supreme Court granted a “writ of certiorari,” agreeing to hear an appeal – which could be a bad sign since we had won in the court below. The case was set for oral argument on the first Tuesday in October, 1981.
The Republican presidential candidate in 1980 had promised voters that, if he were elected, he would appoint the first woman justice on the court. Ronald Reagan kept his promise, appointing Sandra Day O’Connor in the summer of 1981. She was confirmed by a 99-0 vote in the Senate, and took the oath on September 25, 1981.
Widmar was argued on Tuesday, October 6, 1981, Justice O’Connor’s first week on the job. It was her first church-state case, and the Missouri Blaine Amendment would be a key issue. I sat at counsel table beside Jim Smart, who argued for us. The oral argument went surprisingly well. Justices who might have opposed us seemed to be even more disturbed by the State’s strict separationist views.
Two months later, the decision was handed down on December 8, 1981. The vote was 8-1 in favor of our clients, the Cornerstone students. Justice O’Connor voted with the majority in holding that religious student groups must be given “equal access” to the student union on the same basis as non-religious groups. The state could not discriminate against Cornerstone just because of its status as a church group, or because of the religious content of the speech at its meetings. The Court quickly disposed of the Blaine argument, saying that Missouri’s desire for “strict separation” in avoiding even indirect financial aid to a church did not trump the student’s rights to Free Exercise, Free Speech and Association, and Equal Protection of the laws.
Now, fast forward 35 years later. Neil Gorsuch was confirmed on April 7, 2017, and took the oath of office on April 10. Trinity Lutheran Church was heard on April 19, 2017, during his first week of cases. It was his first church-state case as a Justice. A key issue was the Missouri Blaine Amendment. And I was back in the Courtroom as co-counsel, now with my son Jonathan Whitehead seated at counsel table for the Petitioner Church. The oral argument seemed to go well.
Justices who might have opposed our view seemed to be even more disturbed by the State’s strict separationist views. Fascinating parallels to Widmar raise the question in my mind: Coincidence? Or Providence? I know my answer. But we’ll wait until a decision is announced, perhaps about June 30, before looking for other parallels.
The wrong side for Baptists?
Some have suggested that historic Baptists would be on the state’s side of the Playground case, opposing any government payments to a church. Indeed, the Baptist Joint Committee, who used to represent Southern Baptists in Washington before 1990, filed an amicus brief in support of the state’s position in this case. (By the way, BJC filed an amicus brief on our side in the Widmar case.)
Baptist forefathers like John Leland and Isaac Backus had strong views on separation of church and state. Religious liberty became a Baptist distinctive in America because of their preaching, and the First Amendment religion clauses are attributable in no small part to their advocacy. Jonathan Whitehead offers reasons why these founders would have supported the non-discrimination principle in the Playground cases. (See side bar story by Jonathan Whitehead, page 3).
Others complain that churches do not pay taxes and therefore should not receive tax funds. But churches do pay this tax. Every consumer who buys new tires in Missouri pays this tax, a tire recycling fee of 50 cents per new tire. The state program works beset when non-profits use this surfacing material for playgrounds. The state is not required to have this environmental/safety program for non-profits, but if the state has the program, it must not discriminate among non-profits based on religious status. It must not force churches to choose between receiving a public benefit and retaining their status as a church.