Of gravel, playgrounds and religious freedoms
A U-turn by Missouri Gov. Eric Greitens might let the air out of a highly anticipated Supreme Court challenge to the state’s 2012 rejection of a church school’s scrap-tire grant application.
While the complex clash pitting the First Amendment against one interpretation of the state’s constitution remains set for an oral argument Wednesday, it could be simplified by Greitens’ unexpected announcement Thursday that religious organizations can now obtain the grants.
The move means Trinity Lutheran Church of Columbia, Missouri, might apply again for the grant that officials previously rejected because of a provision in the state constitution that bans state funding “in aid of any church, sect or denomination of religion.” The move also allows Supreme Court justices an off-ramp from a case that promises to divide them.
“It gives an option for the court to (rally) around a dismissal,” attorney Aaron Streett, head of the Supreme Court practice at the law firm Baker Botts, said Friday.
Streett wrote a legal brief on behalf of Republican Sens. Marco Rubio of Florida and Ted Cruz of Texas and others who support the church. From the other side, Richard B. Katskee, legal director for Americans United for Separation of Church and State, likewise said Friday that the case might be dismissed.
“The Supreme Court no longer has a case to hear on Wednesday because the governor just provided the remedy that Trinity is asking the court to award,” Katskee said in a statement.
At the same time, Streett added that the court would be on “firm ground” in continuing with the case, and the church’s attorney agreed. On Friday afternoon, the Supreme Court gave both sides until Tuesday to “submit their views on whether this case is affected” by Greitens’ announcement.
At the least, the state’s shift will create some new choices for the high court and its conservative rookie, Justice Neil Gorsuch.
For Gorsuch, the hourlong oral argument and subsequent decision-making could engage him in his first high-profile case since his April 10 swearing-in. On the narrowly divided nine-member court, his vote would be key. While his track record suggests he’ll show sympathy for the church, Gorsuch has taken pains to cast himself as entirely neutral.
“We have a free exercise clause that protects the free exercise of religious liberties by all persons in this country,” Gorsuch said at his Senate Judiciary Committee confirmation hearing last month, before adding that “if you’re asking me how I apply it to a specific case, I can’t talk about that, for understandable reasons.”
The application, in the case now called Trinity Lutheran Church v. Comer, starts with scrap tires but quickly inflates into something bigger.
Trinity Lutheran Church 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 in the area 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 people of Missouri have decided, as a matter of state constitutional policy, that public funds may not be directed to churches.
state of Missouri’s brief, June 28, 2016
Trinity’s application ranked fifth out of 44 applications in 2012, when 14 projects were funded. The state agency rejected the application, citing the church-funding prohibition in Missouri’s Constitution. State officials have insisted the prohibition, first adopted in the 19th century, is consistent with the First Amendment’s religion protections.
“This court has long held that the government has no obligation to fund its citizens’ exercise of their constitutional rights,” said Missouri’s Supreme Court brief, submitted last year by the state’s former attorney general, Chris Koster.
On Thursday, Greitens announced that the state’s Department of Natural Resources will henceforth allow religious organizations to receive the scrap-tire grants. The policy reversal, though, leaves the state constitutional language in place and poses further complications for former Missouri Solicitor General James Layton, who will represent the state Wednesday.
The First Amendment declares, among other things, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The church’s attorneys argue that the blanket denial of state grant funds to churches amounts to an “unconstitutional restriction on the faithful’s ability to participate on equal terms in public life,” and they contend Greitens’ policy change does not eradicate the problem Trinity encountered.
“His new directive doesn’t resolve the discriminatory actions that were taken against Trinity Lutheran’s preschool and the attempt to deny Trinity Lutheran its constitutionally protected freedom to participate equally in society,” Alliance Defending Freedom Senior Counsel David Cortman said Thursday night.
The Supreme Court 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. The April 19 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 that would have upheld a lower appellate ruling that sided with Missouri.
In upholding Missouri’s constitutional ban on funding churches, the 8th U.S. Circuit Court of Appeals cited precedents including a 2004 Supreme Court decision upholding Washington state provisions that barred public scholarship aid to post-secondary students pursuing degrees in theology.