Supreme Court readies for religious liberty showdown

WASHINGTON—The fate of one Missouri playground is long overdue.

In the 15 months since the Supreme Court agreed to hear Trinity Lutheran Church of Columbia v. Comer, the United States has put a new president and a new Supreme Court justice in place. With Justice Neil Gorsuch sworn in, the court next Wednesday will hear the anticipated religious liberty case that started over playground equipment but could affect faith-based organizations around the country.

In 2012, Trinity Lutheran Church applied for a Missouri state program to reimburse nonprofits for rubber playground surfaces made from recycled tire scraps. The program receives funding through a fee attached to new tire sales and helps reduce the number of old tires in landfills while providing a cost-effective way to purchase safe playground surfaces for children.

The Missouri Department of Natural Resources ranked Trinity Lutheran’s application for the $20,000 grant fifth out of the 44 entities bidding for the tire scraps. The state awarded grants to 14 applicants, but Trinity Lutheran’s preschool was not one of them. Citing the state constitution’s Blaine amendment, Missouri said it could not allow money from the state treasury to go “directly or indirectly in aid of any church, sect, or denomination of religion.” Trinity Lutheran sued and has been battling in court ever since.

“What’s on the line here is can a state use its own state constitution to treat religious organizations and churches as second-class citizens?” said Erik Stanley, senior counsel for the Alliance Defending Freedom, who will help argue on behalf of Trinity Lutheran next week. “The state shut the door to Trinity Lutheran solely because of its religious status as a church.”

Stanley told me he planned to claim status discrimination against the church. The Supreme Court has never upheld status discrimination in any prior cases, he said.

The court agreed to review the church’s case in January 2016, less than a month before the death of Justice Antonin Scalia. Looking at the record of newly seated Justice Neil Gorsuch, Carl Esbeck, a religious freedom lawyer at the University of Missouri School of Law, expected Gorsuch to favor Trinity Lutheran.

With Gorsuch in place, the court could have a 4-4 split with Justice Anthony Kennedy casting the deciding vote.

“Justice Kennedy, who’s often an unreliable vote or a swing voter, has a long record of upholding state funding of religious schools,” Esbeck told me.

He said Kennedy would most likely join Gorsuch and the other Republican court nominees. Esbeck noted Justices Stephen Breyer and Elena Kagan might even disagree with the lower court rulings, allowing Trinity Lutheran to win by a landslide.

If the court sides with Trinity Lutheran, the justices could establish a new precedent for how states can interpret Blaine amendments.

Currently, 38 states have Blaine amendments in their constitutions dating back to the late 19th century. The provision was popular with strict separationists, but also anti-Catholic Protestants who didn’t want Catholic schools to receive benefits from the state.

Supreme Court justices often look at flaws in the text of a law, but other times they focus on the history of the provision and the intent of something when implemented, said Carrie Severino, chief counsel of the Judicial Crisis Network.

“In the Blaine amendment, you’ve got problems with both,” she said.

Neither Severino nor Esbeck expects the court to cast a significant blow to Blaine amendments, and Stanley told me he doesn’t plan to argue for that outcome. But the court could help clarify what’s lawful for Blaine amendment use, something of interest to religious institutions across the country.

Severino explained Missouri’s Blaine amendment is quite broad and theoretically could block just about any state service for religious institutions. Technically, if someone called 911 to report bomb threats made against a Jewish community center, the state could use the amendment to refuse to investigate because it indirectly benefits religion.

“That’s insane,” Severino said.

Stanley told me his goal for this case was to establish a level playing field for religion where the state treats religious and non-religious entities the same when it comes to neutral, secular programs and services, like grants for recycled tire scraps.

Steven Green, a law professor at Willamette University, described himself as a strict separationist and wrote an amicus brief against Trinity Lutheran last year.

He told me he also expects Trinity Lutheran to win its case.

“I’m not really sure how the state could argue it advances religion to pay for the resurfacing of a playground,” Green said. “I’m a real separationist, and I probably would have said, ‘This is fine.’”

A ruling is expected in the case by the end of June.