High Court Seems Sympathetic to Claims of Church Denied Playground Grant

By Mark Walsh — April 19, 2017 4 min read
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The U.S. Supreme Court on Wednesday appeared inclined to side with a church arguing that the state of Missouri violated the U.S. Constitution when it denied the church a playground improvement grant for its preschool.

It was less certain, however, that the justices would issue a sweeping ruling that state constitutional amendments barring aid to religion had to give way to federal free exercise of religion concerns that would affect other issues, such as vouchers and tax credits for private religious schools.

“There is a constitutional principle. It’s as strong a constitutional principle as any constitutional principle there is, that when we have a program of funding—and here we’re funding playground surfaces—that everybody has a right to that funding,” Justice Elena Kagan told a lawyer representing the state during arguments in Trinity Lutheran Church of Columbia v. Comer (Case No. 15-577). “As long as you are using the money for playground surfaces, you’re not disentitled to that program because you’re a religious institution doing religious things.”

“We don’t want to be in a position ... where we are selecting among churches,” said James R. Layton, a special assistant attorney general of Missouri, who was defending the state’s 2012 refusal to provide the Lutheran church with a grant from the state’s scrap-tire recycling program for a new, rubberized playground surface. “We don’t want to be in a position where we are making a visible, physical improvement on church property.”

The state has said defended its refusal to provide a grant to the church by arguing that the result was compelled by language in the Missouri constitution that bars direct aid to churches. The Trinity Lutheran case became more complicated in recent days, however, by a decision of Republican Gov. Eric R. Greitens to change state policy and permit churches and religious organizations to apply for the grants.

The Supreme Court asked both sides to file short letter briefs on Tuesday addressing whether the change affects the case. Both sides said the case remained a live controversy and should proceed, although some other groups argued the case is now moot.

The procedural questions did not seem dominant on the minds of most justices during oral arguments on April 19, and did not even come up until deep into the argument.

“Why do you have a case here?” Justice Stephen G. Breyer asked David A. Cortman, the lawyer representing Trinity Lutheran church. “The governor says he’s going to give you a grant.”

Cortman, alluding to the fact that Greitens had announced the policy change on Facebook, said the policy could easily be changed back, by Greitens or the next governor.

Justice Sonia Sotomayor later told Layton that she worried that the parties were not really in an adverse position and thus the case may have become moot

But no other justices expressed such qualms, and most of the questioning went to the merits of Trinity Lutheran’s claims that the state’s decision violated its free exercise of religion and equal protection rights.

“The state of Missouri has excluded [the playground] solely because it is operated by a church,” said Cortman.

Sotomayor referred to the language in the constitutions of 39 states that bar state aid to religion. “The essence of that history is that as a country—well, the vast majority of states—don’t want to fund houses of worship,” she said.

But Justice Samuel A. Alito Jr. alluded to the view that many of those state constitutional provisions were motivated by 19th Century anti-Catholic bias. School choice advocates contend in several friend-of-the-court briefs that such provisions, called state Blaine amendments after an unsuccessful federal amendment sought by U.S. Sen. James G. Blaine, are barriers to vouchers and tax credits.

“There is much history showing about the anti-Catholic bigotry that’s behind this specific provision” of the Missouri constitution, Cortman said.

There were also many hypotheticals involving state aid to religious schools. Alito wondered whether Missouri could provide money to protect certain religious schools from threats of violence. Layton said Missouri case law suggests that it could not provide such aid for a church-owned school, but perhaps could for an independently controlled private school, even if it had a religious affiliation.

With Kagan evidently skeptical of the state’s denial of the grant, and questions from members of the court’s conservative bloc that leaned toward the church, it appeared that a majority favored Trinity Lutheran’s arguments on the merits.

It was not until late in the argument that the court’s newest member, Justice Neil M. Gorsuch, chimed in with some questions. He seized on a line of questioning about the selectivity of the Missouri scrap-tire grant program and similar public benefit programs.

“How is it that discrimination on the basis of religious exercise is better in selective government programs than general ones?” he said to Layton. “Discrimination on the basis of status of religion—we know that’s happened in this case, right?”

And he asked Layton why the state emphasized that it did not want to provide aid for an aspect of the church’s “physical plant, as opposed to say, personnel or nonphysical grant money. ... Now the line is moving.”

Layton said, “Wherever the line is, writing a check that says ‘payable to Trinity Lutheran Church’ ought to be on the other [unconstitutional] side of it.”

A decision in the case is expected by late June.

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