I wrote recently about an appeal to the U.S. Supreme Court by Trinity Lutheran Church of Columbia, Missouri, which has accused the state of violating the First Amendment by disqualifying the church from receiving public funds to resurface a playground at a preschool and daycare center that it operates.
The court heard oral argument of the appeal on April 19. Based on the justice’s questions, a majority appears inclined to side with Trinity Lutheran. As Amy Howe at Scotusblog notes, “The end result could be an important ruling on the disbursement of funds by state and local governments to religious institutions.”
Justice Ginsburg, who together with Justice Sotomayor seemed most skeptical of Trinity Lutheran’s argument, asked David Cortman, who argued on behalf of the church, why the appeal differs from rulings by the court “that the Framers didn’t want tax money imposed to pay for building or maintaining churches or church property.”
There’s a difference between funding religious activities and funding secular activities of religious organizations, replied Cortman. But, Justice Sotomayor noted, the playground is part of the ministry of the church. “How do you separate its secular function from its religious function?” she asked.
“The way the court always has,” said Cortman, who noted that even though the motivation for operating the preschool “is a religious motivation, that doesn’t mean that every activity that occurs there happens to be religious.”
Justice Breyer asked Cortman whether Missouri, which says that its constitution prevents the state from distributing funds to a church, has ever said the constitution “prevents the state from giving grants or from spending money on police protection for churches.”
The state hasn’t said that, responded Cortman.
Justices Breyer and Ginsburg, noting that a decision a week earlier by the governor of Missouri to reverse the state’s policy on giving grants to religious organizations, asked whether the reversal mooted the appeal.
No, responded Cortman, calling the change “temporary” and noting that the state could “return to its old ways.”
James Layton, who argued on behalf of the state, told the justices that Missouri’s ban on funds to churches dates to 1820 and is modeled on Thomas Jefferson’s Virginia Statute for Religious Freedom.
Layton said the appeal parallels a ruling by the Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for scholarship aid students who pursue degrees in devotional theology. In that case, the state cited its constitution, which prohibits use of public funds to aid religious instruction.
“But this is quite different than Locke, because this is a status-based statute,” Justice Kennedy noted.
Justice Alito returned to the question raised by Justice Breyer. “So if you have a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?” he asked.
“The answer traditionally would be no,” Layton replied, saying that state money could not be used to erect a “physical addition” to a church or synagogue.
So why can the state provide police protection or fire protection, Justice Kagan asked. In that case, the state is “providing a service,” said Layton. “And the service is not being provided solely for the benefit of the church” but for the benefit of public safety.
Justice Breyer continued. “Does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection but not churches?”
It does not, Layton replied.
“If it does 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?” Justice Breyer continued.
“The difference is that the establishment concerns that motivate Missouri’s policy do not apply in the police and fire context but they apply here,” Layton replied.
Chief Justice Roberts noted that Locke distinguished “between assistance for devotional, theological education and scholarship and others.”
But this case raises “more serious problems” than Locke, replied Layton. “It is a direct payment to a church.”
“Still the question,” said Justice Kagan, “is whether some people can be disentitled from applying to that program and from receiving money if they are qualified based on other completely nonreligious attributes, and they’re disqualified solely because they are a religious institution doing religious things…. and you’re still saying, well, no, you – you can’t get the money.”
Justice Roberts continued. “What if you had a program at the state capitol. You had tours for school groups, and you had someone who… coordinated, tied it into the social studies program; school groups can come in, but no religious schools.”
The state does have tours, noted Layton, who added that the tours “do not require the state to be entangled in any way with the church and its ministry.”
Plus, Layton added, “the church gets points [in the community] for telling people in the community that the state paid for this improvement to their church.”
But “you could say the same thing,” replied Roberts. “That the church is delighted that is has fire protection.”
“So long as the money is granted based on neutral criteria that are faithfully applied, I don’t know that you can draw a distinction between a program that’s open to everybody and a selective program,” said Justice Alito.
But a grant of funds for playground resurfacing, responded Layton, “is a publicly visible manifest demonstration of state endorsement.”
“It’s a clear burden of a constitutional right… because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit,” responded Justice Kagan, who seemed over the course of the argument to swing toward siding with Trinity Lutheran.
“Here we have… a direct payment to a church,” Layton reiterated.
Justice Sotomayor, perhaps sensing the majority’s inclination to side with Trinity Lutheran on the merits of the case, returned to the possibility that the governor’s reversal mooted the appeal.
“If we have no adversity hasn’t this case become mooted?” she asked.
But under Missouri law, a taxpayer could sue the state for allegedly violating its constitution, Layton responded.
Justice Gorsuch returned to the line of questions about tour groups. “The tours, isn’t it selective based on who can show up at the capitol and afford to do that?” he asked.
But with playgrounds, “we have a selective program that is publicly announced, publicly visible, that is different from these other kind of programs,” said Layton.
“But how do we draw the line between selective and general?” Justice Gorsuch asked.
“We do know that the decision here was made because it was a church,” said Layton.
Justice Gorsuch countered that the state has programs that pay for crossing guards for children. “Do we do the same thing with health of children?” he asked. “That’s what I see as the difficulty. We choose your line there, and we proliferate litigation forever.”
“There’s a statement… in the [church’s] brief that says the church is told that it can’t participate in the life of the community, but what Trinity wants is to have the community participate in the life of the church,” Layton added. “And that is anathema to the kind of basic doctrines that we get out of the founding era that provided for a division.”
But “now the line is moving,” responded Justice Gorsuch. “Now it’s apparently on the basis of whether we’re granting the money to physical plant or to some other purpose.”
“Wherever the line is,” said Layton, “writing a check that says payable to Trinity Lutheran Church ought to be on the other side of that line.”
The court is expected to issue a ruling in the case this June.