A majority on the Supreme Court appeared to offer support Wednesday
for a church excluded from a publicly funded aid program, during the
hearing for what was considered Justice Neil Gorsuch’s first
high-profile case.
At issue is a double dose of contentious issues:
religious freedom and taxpayer funding. It is one of the most closely
watched cases of the term, and could portend a series of upcoming
church-state disputes facing the justices.
The justices are considering whether Trinity Lutheran
Church in Columbia, Mo., should be eligible for state funds. The church
sued after being denied funding to improve the surface of a playground
used by its preschool, by replacing gravel with softer, recycled
synthetic rubber.
The state program gives grants to nonprofits seeking a
safer recreational environment for children. But Missouri's law --
similar to those in roughly three-dozen other states – prohibits direct
government aid to educational institutions that have a religious
affiliation.
Republican Gov. Eric Greitens’s unexpected decision
last week to change the policy and allow religious institutions to
participate in the program raised questions about whether the
constitutional fight is now moot -- but no one on the nine-member bench
appeared ready to punt the case away.
Instead, an intense hour of oral arguments focused on the merits.
"I'm not sure it's a 'free exercise' [of religion]
question," said Justice Sonia Sotomayor. "No one is asking the church to
change its beliefs. The state is just saying it doesn't want to be
involved in giving [public] money to the church."
But other members of the court questioned the church's exclusion.
"You're denying one set of actors from competing [for
the grant money] because of religion," Justice Elena Kagan said. She
called it a "clear burden on a constitutional right."
The Constitution's First Amendment speaks on religion
in the public sphere with two important provisions. The Establishment
Clause prohibits the government from unduly preferring or promoting
religion over non-religion, and vice versa. And the Free Exercise Clause
protects Americans' rights to practice their faith, absent a
"compelling" government interest.
Gorsuch, the court’s newest member, was subdued by
comparison to his active involvement during his first two days of
arguments. He only asked a couple brief questions of the state's lawyer
near the end of arguments.
The Supreme Court accepted the church's petition for
review back in January 2016, when Justice Antonin Scalia was still the
senior conservative. His death a month later kept the case on hold,
possibly because the eight justices believed they would ultimately tie.
Such splits mean no nationwide precedent is set.
Trinity Lutheran's high-profile case was finally put
on the argument schedule for April, just in time for Gorsuch to perhaps
cast the deciding vote.
The Christian church operates its Child Learning
Center to serve families, incorporating "daily religion and
developmentally appropriate activities in a preschool program."
To minimize injuries on its playground, the church
applied to the state's "Scrap Tire Surface Material Grant" program,
funded by a 50-cent tax on the purchase of new tires. The church says
its application ranked fifth out of 44 other nonprofits, but was
ultimately denied.
Missouri's constitution says "no money shall ever be
taken from the public treasury, directly or indirectly, in aid of any
church, section or denomination of religion."
The high court has never fully answered whether "free
exercise of religion" compels states to provide taxpayer funds to
religious institutions, through neutral means that do not promote
faith-based beliefs or practices.
Teachers unions, meanwhile, worry a ruling favoring
Trinity Lutheran would add nationwide momentum for private school
voucher programs, part of the school-choice movement which the Trump
administration has promoted. And some organizations fear a sweeping
conservative-majority court opinion would lead to discrimination with
the backing of government money.
Into the debate jumped Gorsuch, who took heat from
Senate Democrats during his confirmation over past cases dealing with
religion, while serving as a federal appeals court judge in Denver for
over a decade.
Perhaps the 49-year-old justice's highest-profile
case was the 2013 concurrence supporting the right of for-profit,
secular institutions (and individuals too, he argued) to oppose the
Obama's administration mandate to provide contraceptives to their
workers. Gorsuch affirmed his past ardent commitment to religious
freedom against claims of government "intrusion."
Besides the Trinity case at hand, the Supreme Court
in coming days could accept two other religious liberty disputes for
future review: Whether a Colorado baker and a Washington state florist
can be compelled to do business with same-sex couples, which they say
would violate their "sincerely held" religious beliefs.
The current case is Trinity Lutheran Church of Columbia, Inc. v. Comer (15-577). A ruling is expected in late June.