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The United States Supreme Court seems primed to decide a case that could dramatically alter long-standing jurisprudence concerning the constitutional prohibition against the establishment of religion.   It heard arguments in April 2017 in Trinity Lutheran Church v. Comer, when the questions and comments from the Justices seemed to favor a major decision in favor of religious freedom.

Trinity Lutheran Church is in Columbia, Missouri.  It operates a licensed preschool and daycare center on church premises.  The preschool and daycare have an open admission policy, meaning that there is no preference shown based on a family’s religion.  However, the Church sees the preschool and day care as part of its ministry and outreach into the community.  It actively teaches the children from a Christian perspective and incorporates religious instruction into its daily activities.

The Missouri Department of Natural Resources offers Playground Scape Tire Surface Material Grants, which provide recycled tires to resurface playgrounds.  The grants are available on a competitive basis.

In 2012 Trinity applied for a grant to refinish its playground.  Its project met all the requirements of the program and was in line to be funded.  However, on May 21, 2012 the DNR wrote to Trinity that the State was unable to provide financial assistance to the church because the Missouri Constitution specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section, or denomination of religion.”

Thirty-nine (39) states have similar constitutional provisions, which are both more explicit and more restrictive than the United States Constitution.  The First Amendment has both a prohibition against the government’s establishment of religion, and a guarantee of the free exercise of religion.  Trinity Lutheran Church filed suit, arguing that the Missouri Constitution and the decision of the DNR disfavored the church just because it was a church, and thereby violated their freedom to exercise their religion.

The case proceeded through the Federal Courts to the Eighth Circuit Court of Appeals.  The Eighth Circuit called the case “unprecedented” and ruled for the State and against the Church, based on existing law.  But the Circuit Court also noted that “the Supreme Court’s Establishment Clause jurisprudence has evolved rather dramatically” and that the time might be right for a major change in the law.

What makes this case “unprecedented” is that Trinity Lutheran did not seek a ruling that Missouri CAN include its preschool in the Scrape Tire program, but that it MUST include the church preschool in the program.   The Missouri Constitution (and similar provisions in other states) make the blanket decision that a direct grant of public funds to a church is a “hallmark of an established religion.”  Existing precedent made the direct payment to a church a bright line that could not be crossed.

However, for many years the late Justice Scalia had been a lonely voice on the Supreme Court for the opposite view.  He wrote in one dissenting opinion:  “When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.”

Trinity Lutheran was granted review at the United States Supreme Court.  The case drew national attention because of the potential for a major decision about freedom of religion, presenting a direct question of whether the position of Justice Scalia had gained traction on the Court, and whether it had won enough support to change the existing law.

The arguments on April 29 had the flavor of a major crossroads in understanding the balance between prohibiting the establishment of religion, without burdening the free exercise of religion.

Trinity Lutheran presented its argument first.  Its lawyer David Cortman was about one minute into his presentation when he was met by strong opposition led by Justices Ginsberg and Sotomayor.  They focused their questions on the church’s admitted singular purpose to advance the Gospel through the day care, the preschool, and the playground.  In other words, everything the church does has a religious purpose.  There was really no distinction between a secular purpose (such as a playground) and a religious purpose (winning converts) because EVERYTHING the church does has a religious purpose.  They focused on the clear and acknowledged statements of the church that the purpose of the day care, the preschool, and the playground were to reach into the community with the Gospel message.  And if EVERYTHING has a religious purpose, then any money from the State to a church is being made for the benefit of religion and is the establishment of religion.

Justice Sotomayor summarized her position: “So how is the building separate from the religious exercise therein? I believe that this playground is part of the ministry of this church. And, in fact, I look at its bylaws, I look at its advertisements, and it includes play and conducted in a religiously valuable way. I think that’s the materials … that the church is advertising. How do you separate out its secular function from its religious function?”

But the argument by the State of Missouri met with even greater opposition from the Court, and opposition that came from both the (so-called) liberal and conservative justices.  These Justices analyzed the case based on the free exercise of religion.  They threw repeated questions as to whether a State can refuse benefits to an organization just because it has its religious purpose.

Justice Breyer asked whether the State can refuse police and fire protection to churches:  “I’m asking, does the Constitution of the United States permit a State or a city to say, we give everybody in this city police protection, but not churches? We give everybody fire protection, but let the church burn down….  does the Constitution, which guarantees free exercise of religion, permit such laws?”

Justice Alito asked about a Federal program that provided grants for the repair of buildings near the Federal building in Oklahoma City that were damaged by the bombing there and asked if churches would be excluded.

Chief Justice Roberts asked about tours of the Missouri State Capital building – can the State refuse tours to church group, just because they are church groups?

Justice Kagan summarized the position with this comment: “It’s a burden on constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit.”

The Court is expected to announce a decision in June.  However the decision comes down, it will be a major pronouncement concerning the free exercise of religion in the United States.  The decision will either decide that any direct flow of funds from a government to a church is an impressible “hallmark of the establishment of religion” or the decision will break new ground and establish new precedent that the State cannot exclude churches from seeking the same benefit offered to other members of the public.

The Roberts court has shown a strong and decisive movement towards an expanded reading of the freedom of religion guarantees.  If the decision follows the lines drawn during the arguments, the Court will advance that cause further than ever before.

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