Liberal and conservative Supreme Court justices alike sounded sympathetic Wednesday to a Missouri church that says it was unfairly denied a state grant for playground improvements.
They didn’t appear unanimous. But a majority of the court – reinforced by rookie conservative Justice Neil Gorsuch – seemed inclined to think a Missouri state agency had violated the First Amendment in 2012 when it rejected a grant application by the Columbia-based Trinity Lutheran Church.
Officials said then that the state constitutional ban on funding for “any church, sect or denomination of religion” constrained them.
The tenor of the justices’ questions during the hourlong oral argument hinted at disagreements, but with a tilt toward the church’s position in a case that could have widespread implications in dozens of other states.
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“It does seem this is a clear burden on a constitutional right,” Justice Elena Kagan told Missouri’s attorney, James R. Layton, adding that “you’re depriving one set of actors from being able to compete in the same way everyone else can compete because of their religious identification.”
Chief Justice John Roberts Jr. likewise pressed Layton hard, telling the state’s former solicitor general at one point that “I don’t understand the basis of your position.”
But with Missouri Gov. Eric Greitens reversing course last Friday, allowing religious organizations to obtain grants like the one denied Trinity Lutheran, some justices suggested the highly anticipated case might have simply become irrelevant.
“Why isn’t this case moot?” Justice Stephen Breyer asked, with Justice Sonia Sotomayor adding that she was worried about the same problem.
The church’s attorney, David A. Cortman of the group Alliance Defending Freedom, countered that “if the political winds change,” then Greitens’ policy reversal might be undone. A state-level legal challenge contending Greitens’ move violated the state’s constitutional language could also ensue, leading inevitably back to the Supreme Court.
“This isn’t a permanent change, by any means,” Cortman said.
Justices spent relatively little time Wednesday morning discussing whether Greitens’ policy change took the case out of their hands. They suggested they were fully prepared to dig into the substantive issues involved in the case, called Trinity Lutheran Church v. Comer.
This is clearly singling out a religious organization, with no justification.
David A. Cortman, attorney for Trinity Lutheran Church
Trinity operates a Learning Center equipped with a playground. The playground’s base of sharp-edged pea gravel and grass endangers the 30 to 40 children who play there during a typical recess, church officials say.
In 2012, officials applied for funding from a “Playground Scrap Tire Surface Material Grants” program operated by the Missouri Department of Natural Resources. The program funds the recycling of scrap tires into more forgiving, rubberized surfaces for playgrounds.
The state agency rejected the application, citing the church-funding prohibition in Missouri’s Constitution. State officials have said the prohibition, first adopted in the 19th century, is consistent with the First Amendment’s religion protections.
The challenge heard Wednesday was not a direct attack on Missouri’s constitutional provision but rather to how it was applied in Trinity Lutheran’s case. Even so, a court decision could reach far.
Thirty-nine states have constitutional provisions effectively prohibiting direct payments to churches, the Baptist Joint Committee for Religious Liberty noted in a brief. A ruling for Trinity Lutheran could help open the door to states funding church-affiliated charter schools, among other consequences.
The First Amendment declares, among other things, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
“We don’t want to be in a position where we’re making a visible, physical improvement on church property,” Layton said.
Last week, nonetheless, Greitens announced that the state’s Department of Natural Resources will henceforth allow religious organizations to receive the scrap-tire grants. The policy reversal leaves the state constitutional language in place.
“Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids. That’s just wrong,” Greitens said in a news release, adding that “today we are changing that prejudiced policy.”
Sotomayor and Justice Ruth Bader Ginsburg voiced the most open skepticism about the church’s position, with Sotomayor declaring that “the playground is part of the ministry of the church” and Ginsburg citing a landmark 1947 court decision that emphasized the separation of church and state.
“This court said in no uncertain terms that what the (Constitution’s) framers didn’t want was tax money being imposed for building or maintaining churches or church property,” Ginsburg said.
The Supreme Court had agreed to hear the case a few weeks before the February 2016 death of Gorsuch’s predecessor, Justice Antonin Scalia, but it was left dangling while Senate Republicans blocked a Democratic nominee from taking the vacant seat last year. Wednesday’s argument date was finally set Feb. 17, shortly after Gorsuch’s nomination.
By effectively waiting until the court had its full roster, the justices avoided the possibility of a 4-4 tie, which would have upheld the lower appellate ruling that sided with Missouri. On Wednesday, Gorsuch weighed in only briefly, albeit with words that sounded sympathetic to the church.
Justice Clarence Thomas, in keeping with his customary practice, did not speak or ask questions during the argument. A court decision is expected by the end of June.