After arguments on Wednesday, U.S. Supreme Court justices seemed to lean in favor of a Columbia church in the case of whether a church’s preschool should be allowed to receive a state grant.
Wednesday’s arguments were the culmination of a five-year battle between Trinity Lutheran Church and the state of Missouri over whether to allow the church to receive a grant to resurface its preschool’s playground, which has turned into a landmark case for religious freedom and separation between church and state.
Trinity has argued that its exclusion from the Scrap Tire Surface Material Grant Program in 2012, for which it was otherwise qualified, is discrimination. The state has argued that giving the church the grant would violate the Missouri Constitution, which has a provision prohibiting religious organizations from receiving state money.
Questions from the justices on Wednesday centered around the line between preventing discrimination while also preserving the separation between church and state.
Transcripts of the proceeding were published on the Supreme Court's website, and are available at the end of this story.
"It's an issue in which states have their own very longstanding law," Justice Elena Kagan said of the divide between church and state. "It's an issue on which I guess I'm going to say nobody is completely sure that they have it right."
David Cortman, counsel for the church through the conservative organization Alliance Defending Freedom, argued that in this case, there was a separation between religion and the purpose of the grant.
"All we're talking about is a safer surface on the playground for when kids play,” Cortman said. "The surfacing being softer doesn't enable religious activities, it doesn't allow it, it doesn't prohibit it. It's really completely separate and apart from it.”
Justice Ruth Bader Ginsburg asked Cortman whether a 1947 case, Everson v. Board of Education, which concluded that no tax could be used to support religious institutions, applied to this case. Cortman argued that funding a playground surface is about safety, not religion.
"I think there's a difference between funding of religious activities and funding secular activities of religious organization," Cortman said.
But Justice Sonia Sotomayor said Cortman was mixing up money with religious practices.
“This church is not going to close its religious practices or its doors because its playground doesn't have these tires," Sotomayor said. "So I'm not sure how this is a free-exercise question, because there is no effect on the religious beliefs. No one is asking the church to change its beliefs."
The state’s counsel was James Layton, the former solicitor general who was assigned to the case after Attorney General Josh Hawley recused himself because of private work he had previously done with Trinity Lutheran.
Layton’s argument that state money cannot go toward religious institutions did not seem to hold weight with the court.
Kagan asked Layton why the state could provide police and fire protection if state funding could not go toward religious institutions. Layton said that public safety is a service, not specific funding toward religious groups.
"This court has seldom, if ever, actually said it's okay to write a check from the public treasury to a church," Layton said. "We're providing a service. And the service there is not being provided solely for the benefit of the church. The service is being provided for police and fire for the benefit of the public safety."
Justice Stephen Breyer pushed back against that. He asked if the U.S. Constitution would allow a state to not provide police and fire services to a church. Layton said no.
"If it does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?" Breyer asked.
Based on the hard-line stance they took in questioning Layton and statements they made, the justices seemed to lean in favor of the church. At one point, Kagan said the church’s exclusion constituted religious discrimination.
"It’s a burden on constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit," Kagan said.
Justice Neil Gorsuch was one of the most-watched justices, given that this was his first religious freedom case. He didn’t speak until toward the end of the arguments but seemed in favor of the church. At one point, after a discussion about the difference between selective and general government programs, Gorsuch asked how to draw the line between the two.
"Discrimination on the basis of status of religion, there's no line-drawing problem there,” Gorsuch said. "We know that's happened in this case, right?"
Little mention was made of the fact that Gov. Eric Greitens reversed the state’s policy on the grant last week. Greitens said the policy was discriminatory toward churches.
"I'm here to fight for all Missourians, and that includes fighting for and defending people of faith who are too often under attack," he said in a Facebook video.
Following his reversal, it was unclear whether the Supreme Court would still hear the case or if it had become moot. Both the church and state filed briefs yesterday urging the court to decide the case.
Sotomayor asked Layton at one point if the case were moot due to the state "manufacturing adversity" by appointing Layton just to be able to argue the case.
"If we have no adversity, hasn't this case become mooted?" Sotomayor asked.
After Breyer asked Layton why the case wasn’t moot, Layton responded that it was still relevant because Greitens or future governors could reverse the policy again. Layton said the case is a question now of whether the state is "free to return to its old ways."
The case originated in 2012, when Trinity Lutheran applied for the Scrap Tire Surface Material Grant Program to resurface its playground. The program provides reimbursement grants to organizations to use scrap tires to resurface grounds. A 50-cent fee collected on tires sold funds the program.
The church ranked fifth based on qualifications, and 14 grants were available. The church was subsequently denied based on its religious status, and the church sued. It lost at the district level and lost an appeal from the U.S. Court of Appeals for the Eighth Circuit.
A list of prior recipients for the grant program includes several churches, including Christian Chapel Academy in Columbia and First Christian Church Daycare. Steph Deidrick, a spokeswoman for the Missouri Department of Natural Resources, said those applications were from 1998 and that "given the passage of time," she is unsure why they were processed as they were.
"Going forward, the department will comply with the Governor’s directive," Deidrick wrote in an email.
Travis Weber, the Family Research Council's Director of the Center for Religious Liberty, attended to hear the arguments. He said he thought the day's arguments went well for the church. Family Research Council is a conservative group, and it was one of the many organizations that filed an amicus brief ahead of arguments supporting the church.
"Overall I thought a majority of the justices seemed skeptical of the state’s arguments," Weber said.
Weber said that if the justices rule in the church’s favor, the ruling has the potential to affect a wide variety of cases, including funding for religious schools. But, he cautioned, "we have to wait and see."
A decision was expected by late June.