.- The Supreme Court on Wednesday heard arguments about whether a state benefit program could exclude churches because of their religious status.
Several justices appeared skeptical of Missouri’s rationale for denying a church preschool access to a reimbursement program intended to encourage safety updates to playground surfaces.
Justices also debated the extent to which public services – including firefighting and security services – can constitutionally be offered to religious organizations.
Justice Elena Kagan stated that “there’s a constitutional principle” for religious institutions to be eligible for certain public programs.
“As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things,” she said of the case at hand. “And I would have thought that that's a pretty strong principle in our constitutional law.”
The Supreme Court heard oral arguments Wednesday in Trinity Lutheran Church v. Comer, the most significant religious freedom case of this term so far.
At issue is whether a playground owned by a church and operated by its preschool can be denied access to a state benefit program simply because of the church’s religious status. Other properties of non-profits and secular institutions are eligible for the program.
Trinity Lutheran Church Child Learning Center in Columbia, Missouri, applied for the Scrap Tire Surface Material Grant program within the state’s department of natural resources, which would have provided reimbursements for making safety upgrades to its playground surfaces with material from used tires.
The state ultimately denied Trinity Lutheran participation in the program because it is run by Trinity Lutheran Church of Columbia, after the church was initially ranked fifth out of 44 applicants to receive reimbursements. On the state’s list of eligible recipients, the church originally scored higher than the ultimate recipient of the grants, the legal group Alliance Defending Freedom has said.
Missouri’s state constitution forbids taxpayer funding or preferential treatment of churches, an amendment passed at the same time as the federal Blaine Amendment was proposed.
The Blaine Amendment forbade federal funds from going to churches or their schools, and was seen by many as a ban on taxpayer funding of Catholic schools, as the public school system at the time, in the 1870s, was largely Protestant. Other states have similar amendments.
Groups like the American Civil Liberties Union have argued that the amendment is a protection against the unconstitutional government establishment of religion, although the Eighth Circuit said in its ruling that Trinity Lutheran being reimbursed by the state would not be a violation of the Establishment Clause.
The state’s new governor, Eric Greitens (R), recently announced that religious groups will be eligible for grant programs from the natural resources department in the future, although Trinity Lutheran might not be retroactively eligible for its playground grant.
On Wednesday, David Cortman of the legal group Alliance Defending Freedom argued on behalf Trinity Lutheran. He said that the state had conceded its denial of funding was “not facially neutral” and was “based on their religious character,” thus making it “discrimination against religion.”
Inside the Court on Wednesday, the justices pressed Cortman on whether the playground would be used for religious purposes and if that effectively constituted state funding of religious ministry.
Justice Ruth Bader Ginsburg promptly brought up the Court’s 1947 Eberson decision, which said public funding for maintenance of churches or church property was unconstitutional. Cortman replied that the decision also said that churches shouldn’t be deprived of all public benefits.
Justice Sonia Sotomayor said she believes “that this program is part of the religious ministry of this church.” She then asked if the playground surface reimbursement was an establishment of religion if play time at the preschool began with prayer, or if religious ministries took place on the playground.
The church’s case is for a “safe surface,” Cortman replied, and just because the playground might be used for religious purposes does not mean that it should be ineligible for the funds. If a church school receives public funding, that does not mean that it has to “just stop all religion in school,” he said.
The Supreme Court in Locke v. Davey drew a “narrow distinction,” he said, as that case focused on taxpayer funding of education of religious ministers.
Justice Sotomayor pressed Cortman to explain how the church’s free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface.
James Layton represented the state’s natural resources department, arguing in place of the new Missouri attorney general who recused himself in the case. Layton said that the state amendment is rooted in the 1820 Constitution, which was inspired by Thomas Jefferson’s Statute on Religious Freedom from 1786. It was “reenacted” in the latest version of the state’s constitution in 1945.
The state has “concerns” about the church’s eligibility for the program, he said, as a playground resurfacing funded by the state would be a “visible physical improvement on church property.” The church, he added later, admits it “uses the preschool to bring the Gospel to non-members.”
Justice Alito asked him if a Jewish synagogue or a mosque, threatened by vandals, asked for a public security detail, would that be a violation of the state’s constitution. Layton said it would, according to a traditional reading of the constitution.
Justices Stephen Breyer and Kagan followed up, asking him if emergency responses by fire departments or police officers to the school, or public health programs, would be allowed under the state’s constitution.
Layton admitted that wouldn’t be denied, and Breyer then followed up, asking, “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? What's the difference?”
Layton countered that the safety reason, and other health reasons, would not meet exceptions for public benefits for churches.
Justice Neil Gorsuch, the newest addition to the Supreme Court, did not ask many questions save for an exchange with Layton over government discrimination against religious groups in “selective” and “general” public programs.
After the arguments, Cortman was optimistic about the reception from the justices.
“I think the theme that came out was what we emphasized in our briefs, and that is if the government is going to open up some sort of a neutral benefit program, then it can’t discriminate against religious organizations simply because of their religious status,” he insisted.
“The government should be religion-blind just like it’s race-blind,” he added. “When the government’s engaging in safety benefit programs, it should want all kids to be safe. It shouldn’t matter what their status is, it shouldn’t matter where they decide to attend school, and I think that’s a principle here that the state violated.”