Will the Supreme Court Allow the Direct Public Funding of Religious Activities?

A broad decision from the U.S. Supreme Court in Trinity Lutheran Church v. Comer could make Blaine Amendments a thing of the past.

During Wednesday's oral arguments, Justice Sonia Sotomayor asked the question now simmering in the background of the case: whether the state of Missouri was manufacturing adversity. Pool / Getty Images

Just days before Wednesday’s oral arguments in Trinity Lutheran Church v. Comer, the State of Missouri changed course and said that it would allow churches to receive state grant dollars. That change in position effectively put Missouri on the same side of the fight as Trinity Lutheran, which would normally end a case. After all, if the parties have no legal disagreement, what is there for a court to solve?

However, attorneys for both Trinity Lutheran and the State of Missouri insisted this week that the U.S. Supreme Court should decide the ultimate question the case presented: whether a state violates the First Amendment when it excludes religious organizations from a state benefit.

After an hour of oral arguments, it looks like the Roberts Court is leaning toward answering that question in the affirmative. In doing so, it would strike a death blow to the “Blaine Amendments,” laws in 40 states—including Missouri—that currently prohibit direct public funding of religious activities.

But first, background and context.

Trinity Lutheran operates a preschool and daycare program that is part of its church ministry. On Wednesday, its lawyers admitted to the Court that though it admits children of all faiths, it teaches a Christian worldview in all its programs. They also noted play is an important component of that ministry. The daycare has a playground on the same property as the church, and after-hours and on the weekend, the playground is open to the community.

In 2012 Trinity Lutheran applied for, and was denied, a grant from the Missouri Scrap Tire Grant Program. The program, administered through the state’s Department of Natural Resources, provides nonprofits with reimbursement grants that are designed to provide upgrades to area playgrounds. It’s a limited grant program, with more applicants denied than approved for reimbursement.

After being denied reimbursement funds, Trinity Lutheran sued in federal court, arguing the policy violated the First Amendment’s Free Exercise clause, Free Speech clause, and the Establishment Clause. At the same time, the church challenged Missouri’s Blaine Amendment, arguing it unlawfully discriminates against religious institutions. The State of Missouri disagreed, arguing that because the program is both limited in nature and excludes from its purview all religious organizations as opposed to specific denominations or doctrines, there is no constitutional problem with either the program or the state’s Blaine Amendment. Both the federal district court and Eighth Circuit Court agreed and ruled against the church.

Trinity Lutheran appealed, and in January 2016, the Supreme Court agreed to take the case. Justice Antonin Scalia died very soon afterward. For reasons we may never know, though, the justices delayed scheduling the oral arguments for more than a year. This gave conservatives enough time to anoint Justice Neil Gorsuch to the bench.

It also gave Missouri enough time to elect a new governor, the Republican Eric Greitens. On April 13, said new governor formally announced that the state “is reversing policies that previously discriminated against religious organizations.”

On Wednesday, Justice Sonia Sotomayor asked the question now simmering in the background of the case: “Is the state manufacturing adversity here?”

In other words, she wanted to know, now that both the State and the church have agreed money from the program could go to religious institutions, what is left to decide?

Everything, was effectively the response from Attorney James Layton, who was defending both Missouri’s prior program and the State’s recent change in position.

Let me be clear: There is no real reason for the Roberts Court to decide this case. It should be considered moot—that is, done and over. Nothing to see, folks, move along. Layton’s argument that the case should move forward anyhow smells of conservative politicking.

Conservatives have for years had their sights set on undoing the Blaine Amendments in various states. In Trinity Lutheran, attorneys for the church very aptly framed the question to the justices as one of religious discrimination based on the denial of a state benefit. That portrayal of the heavy hand of the state oppressing religious groups is one the conservative majority on the Roberts Court has historically found sympathetic.

Trinity Lutheran argued the State of Missouri was not just discriminating against the church on its status as a religious organization, but putting children at risk by not reimbursing it for its playground improvements.

In other words, argued David Cortman, attorney for Trinity Lutheran and senior counsel for the Alliance Defending Freedom, won’t somebody think of the children?

As Justice Ruth Bader Ginsburg noted, however, the framers of the Constitution very clearly did not want tax dollars going to directly to religious institutions, nor did the state of Missouri when it enacted its Blaine Amendment. In this case, she said, the state of Missouri is effectively writing a check to Trinity Lutheran. How is that not directly in violation of prohibitions against government funding religious activity?

“It’s just a playground,” Cortman responded.

Justice Sotomayor seemed unconvinced, asking Cortman if that was so, why the church admitted the playground is run as part of its ministry. “No one is taking the playground away,” noted Sotomayor. Why can’t it just use its own funds for its own upgrades?

Cortman responded by saying that just because some of the activities have a religious purpose doesn’t mean all of them do. But just how courts were to make that distinction, let alone states in their funding decisions, Cortman didn’t say.

“It’s just a surface,” Cortman insisted, referring to the playground cover, made from recycled tires, that the grant would pay for. “That doesn’t enable religious activity.”

But it is more than just a surface, the attorney for Missouri said in his arguments. In this case, Layton told the justices, “rubber doesn’t have any meaning until it is used.” This means that once it becomes part of the surface of the playground at Trinity Lutheran, it becomes part of its ministry.

The First Amendment‘s Establishment Clause prohibits the government from making any law “respecting an establishment of religion,” whereas the Free Exercise Clause preserves the rights of individuals to practice their faith with minimal governmental interference. In other words, the First Amendment not just forbids the government from establishing an official religion, but also any government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over nonreligion, or nonreligion over religion. Whether or not Missouri’s original grant program violated the Establishment Clause was a central issue in the case, up until Greitens announced the state had changed its policy. After that change, both sides said there were no Establishment Clause issues to decide. That doesn’t mean, of course, that the justices will agree.

According to Cortman, reimbursing the church for the playground upgrade isn’t the government endorsing, even indirectly, religious activity—so it doesn’t violate the Establishment Clause. But the government excluding the church from its grant program discriminates against the church on the basis of religion, which is an interference on its religious exercise rights.

If it sounds like circular logic, that’s because it is. The church is asking to keep the significant benefits it already receives in the form of tax exemptions as a religious institution, while also having the state write checks directly to it so that the church can improve its property, which is part and parcel of its religious ministry. Pay no taxes, but take taxpayer money. That is the prize here. It’s why attorneys on both sides insisted the Roberts Court rule on the case despite the fact that the very thing Trinity Lutheran wanted—to participate in the state’s grant program—is now a possibility.

Which brings us back to Sotomayor and her question about the parties cooking up a controversy. Before Missouri changed its position, it was very clearly defending its Blaine Amendment. After an election and a newly elected Republican governor—who, despite being in office since January, waited until days before arguments to reverse course—the case now stinks of conservative political collusion.

I doubt the Court has enough votes to get rid of the case on mootness grounds, and it may even have enough votes to give Trinity Lutheran more than an anticipated 5-4 conservative win on the merits of the case. If so, a broad decision from the Court here could make Blaine Amendments a thing of the past, furthering the direct funding of religious organizations with taxpayer dollars.

See Rewire Vice President of Law and the Courts Jessica Mason Pieklo discuss the case with Political and Campaigns Editor Ally Boguhn outside the Supreme Court: