Both Sides in Religion Case Urge Supreme Court to Proceed Despite Policy Change

By Mark Walsh — April 18, 2017 3 min read
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Both parties in a major church-state case with implications for school choice are urging the U.S. Supreme Court to proceed with the case despite a change in position by Missouri’s governor that some legal advocates say makes the case moot.

The case of Trinity Lutheran Church of Columbia v. Comer (No. 15-577) deals with a Missouri program that involves using recycled tires as playground coverings. The state in 2012 denied a grant to the church to improve its preschool playground, a result it said was dictated by language in the state constitution barring aid to religion. The church sued, leading to a major showdown in the Supreme Court over whether the state constitutional provision must give way to the church’s U.S. constitutional rights of free exercise of religion and equal protection. That question also holds implications for school choice measures such as vouchers and tax credits for religious schools.

Last week, Gov. Eric R. Greitens, a Republican who took office this year, reversed state policy and said churches and religious organizations would be eligible for the grants. That prompted the Supreme Court to ask both parties to address what that means for the Trinity Lutheran case, which is scheduled for argument on Wednesday.

On Tuesday, lawyers for the church and the state urged the high court to go on with the arguments. But two civil rights groups filed a letter arguing that the case is now moot and should not proceed.

The Alliance Defending Freedom, a Scottsdale, Ariz.-based group that is representing Trinity Lutheran, said in its letter to the court that “the governor’s policy change comes late in the day, on the eve of oral argument, thus casting doubt on its permanence.”

In addition, the group said, the governor’s change does not alter the fact the the state’s original denial of the grant for Trinity Lutheran was based on the Missouri Supreme Court’s interpretation of the state constitutional language that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

“The Missouri Supreme Court has interpreted [the state constitutional] language as significantly more explicit and more restrictive than the federal Establishment Clause,” the letter by ADF lawyer David A. Cortman says, referring to the First Amendment’s prohibition on a government establishment of religion.

For its part, the Missouri attorney general’s office is not seeking to use the last-minute policy change to try to end the case. It acknowledges that the policy could easily shift again with another change in administration. And Greitens’ new policy is subject to challenge in the state courts from taxpayers.

“There is a realistic possibility that Missouri’s courts may enjoin any future payments to [Trinity Lutheran] under the new policy, absent a judgment from this court in favor of [the church] in this case,” says the letter by D. John Sauer of the state attorney general’s office. (A special state attorney general, James Layton, who has been defending the state’s denial of the scrap-tire grant to the church for several years, is slated to argue that position before the Supreme Court.)

Finally, two groups that have filed friend-of-the-court briefs in support of the state’s refusal to provide the grant filed a letter Tuesday that argued the case is, in fact, moot.

With the governor’s policy change, “Trinity Lutheran Church has received all the substantive relief that it sought in its complaint. The case is therefore moot,” says the letter from the American Civil Liberties Union and Americans United for Separation of Church and State.

The groups argue that the interests of the church and the state are now “aligned, ending the controversy and depriving this case of proper adversarial presentation.”

“Given this dramatic change and [the state’s] public explanation therefor, the state is not in a position to present in this court a vigorous defense of its past policy—a policy that the state has officially disavowed and publicly condemns,” the ACLU and Americans United argue.

The Supreme Court could act before the argument to declare the case moot or send it back to a lower court. It recently returned a major case on student transgender rights to a federal appeals court after President Donald Trump’s administration withdrew guidance on the subject that President Barack Obama’s administration had issued.

But the court could also proceed with arguments on Wednesday and then decide what to do.

A version of this news article first appeared in The School Law Blog.