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.
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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."