WASHINGTON — The U.S. Supreme Court heard arguments this week in a noteworthy religious-discrimination case that some observers believe could have ramifications for related issues, such as school choice and whether states can deny public services like police and fire protection to churches.

The possible impacts of Trinity Lutheran Church of Columbia, Inc. v. Comer hinge on how wide or narrow the high court decides the case, which centers on the question of whether a Missouri state-grants policy violated the church’s rights to equal protection and free exercise of religion.

“It’s my hope in this case that the court will settle on the principle that just because a person is religious or an organization is religious, that is not a license to discriminate against them or treat them any worse,” said David Cortman, an attorney with Alliance Defending Freedom who is representing Trinity Lutheran Church.

In a media conference call the day before oral arguments at the Supreme Court, Cortman said the church was asking the state to treat it the same as any other nonprofit organization that applied for a reimbursement grant. The church planned to use the grant to recoup some of the costs of resurfacing its school playground.

In response to a question from the Register, Cortman said an official at the Missouri Department of Natural Resources told the church in 2012 that it could apply for the grant and that it would not be discriminated against, even though the application materials warned that religious nonprofits were not eligible.

“They were actually encouraged to apply, and, interestingly, when they found out that they were approved for the program as far as their score goes, they also found out that simply because they were a religious organization, they were pulled back out,” Cortman said.

The church had applied to participate in Missouri’s scrap-tire grant program, which reimburses most of the costs of installing rubberized playground surfaces made from recycled tires. The church’s application for its preschool and daycare playground ranked fifth out of 44 applicants, according to court filings.

But in rejecting the application, the state Department of Natural Resources pointed to a provision in the Missouri Constitution that says that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

 

Supreme Court Arguments

In the April 19 oral arguments at the U.S. Supreme Court, Cortman said the recycled-tire program is a secular matter and that the church participating in a program available to other nonprofits does not mean that Missouri violates the U.S. Constitution’s Establishment Clause by favoring one religion over another.

“And the reason I say that is: All we’re talking about is a surface, a safer surface on the playground for when kids play. As was mentioned in one of the amicus briefs … 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,” Cortman said.

James Layton, a lawyer for the state, argued that Missouri should have leeway to decide whether and how much to help religious groups in its grant programs. Layton noted that the recycled-tire program is a competitive grant.

“We don’t want to be in a position, for example, in this case, where we are selecting among churches,” Layton said.

However, Layton was in the odd position of having to defend a state policy that is no longer in effect. On April 13, Missouri Gov. Eric Greitens announced that his administration was reversing the policy to allow religious organizations to apply for and be eligible to receive such grants. Greitens called the old policy “just wrong.”

“We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day. We should be encouraging that work. So, today, we are changing that prejudiced policy,” said Greitens.

That policy change prompted the high court in advance of oral arguments to ask the parties to submit briefs on whether the case was moot. Both sides agreed that the case was still relevant because the policy could be changed again at a later point.

“This policy, as easily as it was changed recently, can be changed back, whether it’s by this administration if they get political heat from those who oppose it, or from the next administration,” Cortman said.

The U.S. Supreme Court agreed to hear the case in January 2016. By then, a federal district and appeals court had ruled for the state. Attorneys said they did not expect the lower-court decisions to affect how the high court will analyze the case.

“The court will look at the policy across the board, not as a question of correcting a mistake,” said Robert Destro, a law professor and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law.

Destro told the Register that the Trinity Lutheran matter is a “pure religious-discrimination case” if the court discounts Missouri’s Establishment Clause argument. Destro said such a policy flows from the state looking to draw “a bright line” against public support and funding of religion.

“But these are ground-up tires, for heaven’s sake. It’s not like the church is buying altar vestments,” Destro said.

 

Pointed Comments

If their remarks and questions during oral arguments were any indication, a majority of the high court’s nine justices could be siding with the church. Justice Elena Kagan, considered to be a member of the court’s liberal wing, called the church’s exclusion “a clear burden on a constitutional right.” Justice Samuel Alito, a conservative, appeared to set up Cortman at one point to say that the noted Missouri provision is similar to the so-called Blaine Amendments that dozens of other states adopted in the 19th century against a backdrop of rampant anti-Catholic bigotry.

Notably, Neil Gorsuch, the high court’s newest justice, said the policy amounted to “discrimination on the basis of the status of religion.” At one point, Gorsuch seemed to ask Cortman rhetorically: “We know that’s happened in this case, right?”

But Justice Sonia Sotomayor appeared skeptical of the church’s argument that its exclusion from the grant inhibited its free-exercise rights, noting that the United States has a long history of states not wanting to fund churches. She also wondered if the case was not already moot, asking Layton if Missouri was “manufacturing” adversity in having him argue in favor of the old policy.

If the justices do not decide the case is moot — and most legal observers do not expect that they will — the court could issue a ruling sometime this summer. The justices may decide to issue a narrow ruling on the specifics of the Missouri case, or they could take a broader, sweeping look at state restrictions against directing public dollars to religious institutions.

 

Blaine Amendments

“If the church wins, they will likely write it narrowly. It will affect Blaine Amendments elsewhere only as applied to wholly secular benefits,” said Douglas Laycock, a law professor at the University of Virginia Law School, who studies religious-liberty issues.

Cortman said the church’s complaint is not a direct attack on Blaine Amendments, which have been adopted by more than 30 states. Cortman said those states vary in how they interpret the amendments and suggested that some of them would have allowed Trinity Lutheran to apply for a public grant.

“We’re not saying that every one of them has to be struck down,” Cortman said. “What we’re saying is the interpretation of the Blaine Amendment has to be consistent with the U.S. Constitution, both the Free Exercise and Equal Protection Clauses — that it can’t conflict with them or violate those rights.”

The ramifications of how the high court could decide the case have concerned scores of religious and secular organizations. Many of them filed amicus briefs before the oral arguments, warning that the court could either open the door to allow states to expand school-choice voucher programs or to prohibit generally available public benefits, such as police and fire protection, to churches and religious organizations.

Cortman said the case is significant in the sense of how far some people and public officials want to go when analyzing the religious clauses in their state constitutions. The separation of church and state, Cortman said, is sometimes taken too far as an excuse to discriminate against churches and religious believers.

Said Cortman, “What does the Free Exercise Clause protect? Can you be treated worse or penalized simply because you’re a religious organization as opposed to a secular nonprofit in this case?”

Noting that the Missouri grant was available to a select few organizations, Laycock does not believe the court will take away from churches any public services available to all people, such as police and fire protection.

 

School-Choice Ramifications?

On school choice, Destro does not see the church’s case having an impact because of the limited nature of the Missouri grant program. Laycock noted that the high court is already set to hear the school-choice issue in another pending case, on appeal from a Colorado Supreme Court ruling that blocked the nation’s first county-initiated school-voucher program in Douglas County.

“If the church wins, Douglas County will probably be vacated and remanded to the Supreme Court of Colorado,” Laycock said. “And whatever that court decides would tee up the school-choice issue.”

Asked by the Register as to what the case could mean for school choice, Cortman referenced the high court’s nine justices and said: “It really all depends on what principles they adopt here, whether they want to go that broad or they want to go narrow.”

 

Register correspondent Brian Fraga writes from Fall River, Massachusetts.