No certainty on ruling in landmark church-state dispute

WASHINGTON—Supreme Court justices on both sides of the ideological spectrum seemed concerned about the state of Missouri’s decision to exclude a church from a neutral government subsidy program, a positive sign for religious liberty advocates watching today’s oral arguments. But the justices also suggested the case might be moot due to recent state policy changes, leaving court-watchers uncertain about whether the justices will rule at all.

After more than a year delay, the high court heard arguments in Trinity Lutheran Church of Columbia v. Comer, a highly anticipated case that will determine whether the state of Missouri can lawfully exclude a church from a playground resurfacing program.

Trinity lost its petition at the district and appellate levels and hoped a Supreme Court ruling would bring clarity to the balance between First Amendment rights and the principle of church-state separation. But recent developments raised new questions about how the case should proceed—or if it even can.

The Missouri church operates a licensed preschool and daycare program and wanted to upgrade its playground surface in 2012. The state’s Department of Natural Resources offered a competitive grant program for nonprofits to get reimbursed for the purchase and installation costs for a rubber surface made from recycled tire scraps. Trinity initially qualified for a $20,000 grant, but the state later denied the church, citing a state law blocking government benefits for religious organizations.

But Missouri’s new Republican administration made a policy change last week that ends discrimination against religious groups in evaluating grant applications for programs like the tire scraps grant.

“Why isn’t this case moot?” Justice Stephen Breyer asked, suggesting the court no longer needs to issue an opinion.

Alliance Defending Freedom’s David Cortman argued on behalf of Trinity and James Layton, special assistant attorney general for Missouri, argued on behalf of the state. Missouri Gov. Eric Greitens, a Republican, and Missouri Attorney General Josh Hawley both support Trinity’s position.

Justice Sonia Sotomayor expressed thanks to Layton, who worked for the previous Missouri administration, for taking on the case so it could proceed, but she couldn’t get over the obvious conflict in the arrangement.

“There seems to be no more adversity in this case,” she said. “The position you are arguing does not appear to be the position of the state anymore.”

That is exactly why the court needs to issue an opinion, Cortman told me after the arguments.

“We’re not sure where the state is going to go next—that’s why we need a ruling,” he said. “If the court doesn’t reach an opinion on this, it’s going to come back in the future.”

Cortman told the justices there is no assurance the state will retain its new policy after Greitens leaves office. He said this new policy, which Greitens announced on Facebook, can just as easily be switched back when the political winds shift. Since the Missouri Supreme Court already ruled against Trinity, someone is sure to challenge the new policy, he added.

Despite the complicating wrinkle, the justices asked hard questions on both sides about the merits of the case.

Justice Elena Kagan asked how to define “church” and asked Cortman about the playground’s connection to the church. Would it make a difference if the playground had a more explicit religious function?

Cortman said that would be a different case because the playground serves a secular function for children at the daycare and for the community after school hours and on weekends.

Sotomayor seemed to have a problem with Cortman’s claim that Missouri violated Trinity’s right to free exercise of religion. She said the state is not taking anything away: The church will not close its doors and the playground will remain, even without the state-subsidized tire scraps. The state just doesn’t want to participate in the improvements, she said.

Layton agreed and told the court Missouri does not want to be in the position of selecting which churches to benefit. This isn’t just a secular health-and-safety subsidy to install a more protective play surface, he said, it’s making a physical and visible improvement to a religious center. The state has no way to monitor how the church will use the playground—it could host worship services there and the state would, in essence, have endorsed the activity because it paid for the facility, Layton said.

He added it also could be a draw for others to join the church since Trinity could talk to the community about the state-funded improvements.

“Couldn’t they say they’re delighted to have fire protection?” Justice Anthony Kennedy quipped.

Breyer jumped on this point and asked Layton in what situation would it be OK for the state to discriminate against religious groups.

“Can it provide fire protection to everyone, but let the church burn down?” Breyer asked.

Layton declined to take a position on the hypothetical but said the new playground surface clearly would benefit the church as a whole.

Kagan said cases involving church-state separation are always fraught and no state is 100 percent certain it has struck the right balance. The Constitution does not say a state needs to subsidize religion, just that it can’t interfere with it, she said.

Wednesday marked Justice Neil Gorsuch’s third round of oral arguments. He sat listening quietly for most of the hour-long session but asked Layton a few questions toward the end.

Both Layton and Cortman hope the court doesn’t decide the case is moot. If the justices issue an opinion, it will come down by the end of June.

“I honestly would be shocked if they said the case was moot because the case law is so clear,” Cortman told me. “Can the state reinstitute the old policy? The answer is not only can they, but it is likely.”