Governor’s reversal throws wrench in church-state case

Missouri Gov. Eric Greitens, a Republican, added some last-minute drama to a major church-state case the U.S. Supreme Court plans to hear Wednesday, sending lawyers in the case scrambling.

On Thursday, Greitens announced his plan to reverse the state’s position on blocking grants to religious institutions–the central question in the case Trinity Lutheran Church of Columbia v. Comer. He said the state’s previous policy “discriminated” against religious organizations. The Supreme Court on Friday told lawyers from both sides to file letters today on what Greitens’ announcement meant for the case.

In this case, the state blocked a church from receiving free scrap tires for its daycare playground surface, a state grant that was available to all except religious institutions. Religious freedom lawyers called the case clear-cut, and the church seemed headed to some kind of victory with the addition of Justice Neil Gorsuch to the bench.

In new filings today, both sides argued the high court should move forward, deciding the issue instead of mooting the case. That is not a surprising position for the church, which lost at the lower court level. But it is for the state—which already won its position at the lower court. The case is complicated because it began under a Democratic governor and attorney general, but the November elections ushered into those offices Republicans who agreed with the church’s position.

Republican Attorney General Josh Hawley recused himself from the case because he had earlier participated in an amicus brief on the side of the church. To give the case a fair defense, he appointed an attorney from the previous administration, Jim Layton, to take over the arguments at the high court.

But Layton did not pen the letter today arguing for the court to decide the case; John Sauer, the new solicitor general under Hawley, did. Sauer argued the governor’s “voluntary cessation” of the ban on religious institutions only meant that there was a change for now. He or a future governor could resume the policy of blocking state aid to religious institutions at any time, so the court should decide the issue.

“[T]here is no clearly effective barrier that would prevent the agency from reinstating that policy in the future,” he wrote. Sauer also anticipated litigation against the governor’s new action and argued the court should decide the underlying issue of whether the state constitution could ban state aid to religious institutions.

The letter from Alliance Defending Freedom (ADF), the organization defending the church, made the same argument based on “voluntary cessation,” saying the change in policy might be only temporary and would not mean fair treatment for religious institutions in the long run.

Greitens’ action so close to oral arguments in the case was odd. While it won praise from some Missouri religious leaders, it seemed to peeve the ADF lawyers defending the church. In their letter, they described the policy change as last-minute several times. If the Supreme Court mooted the case as a result of his action, it would leave them without a possible national precedent defending state aid to religious institutions.

Oral arguments are Wednesday morning at 10 a.m.