Law & Courts

11th-Hour Twist for Major Church-State Case at the U.S. Supreme Court

By Mark Walsh — April 14, 2017 2 min read
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Is a big church-state case about to fall off the U.S. Supreme Court’s jungle gym?

The court on Friday asked for the parties in a major case about state aid to religion to offer their views on the Missouri governor’s decision to reverse state policy and allow churches and religious organizations to apply for a state grant program to use recycled tires to build safer playgrounds.

The case of Trinity Lutheran Church of Columbia v. Comer (No. 15-577) has undergone a huge buildup as a showdown about whether religious organizations may participate in neutral aid programs. The case has potential implications for school choice programs such as vouchers or tax credits for students to attend religious schools. (Education Week‘s big preview of the case just went to press Friday.)

But with the court back at full strength with the addition of new Justice Neil M. Gorsuch, and just days before the long-delayed oral arguments in the case are scheduled for April 19, Missouri Gov. Eric R. Greitens (R) has caused some doubt.

Greitens, who was elected in November 2016 and took office in January, announced on April 13 that he was reversing the state’s policy of barring churches and religious groups from the scrap-tire grant program. The state’s denial of the Trinity Lutheran’s 2012 grant application, based on language in the Missouri Constitution that no public money may directly or indirectly aid a church, has led to the Supreme Court case.

“Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids,” Greitens said in a Facebook video. “That’s just wrong ... We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day. We should be encouraging that work. So, today we are changing that prejudiced policy.”

Greitens’ office said the governor’s decision should not affect the Trinity Lutheran case since the state’s denial of the church’s grant still provided a basis for its lawsuit. But other legal experts are not so sure.

And now the Supreme Court itself has raised doubt about whether the case might fizzle because the state’s change might make Trinity Lutheran’s case moot.

“The court directs the parties to submit their views on whether this case is affected by the press release relating to access to Missouri grant programs” issued by Greitens on April 13, the Supreme Court clerk’s office said in a letter to both sides. It gave the parties until noon on Tuesday, April 18, to file their responses by letter.

The arguments in the case are scheduled for 10 a.m. the next day, April 19. The justices could decide to scrap the case as moot or could proceed with the arguments, during which they could give further consideration of the governor’s action before moving to the merits.

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