Church-State Fight May Depend on Missouri AG Election

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By Patrick Gregory

Nov. 2 — Missouri’s attorney general election Nov. 8 could determine whether a long-unscheduled religious freedom argument at the U.S. Supreme Court gets delayed even longer or canceled altogether ( Trinity Lutheran Church of Columbia, Inc. v. Pauley, U.S., No. 15-577 ).

Trinity Lutheran Church’s brief says the Missouri Department of Natural Resources violated the First Amendment’s free exercise clause by denying its application for a playground safety grant.

Bans on public funding to churches in 39 states could be undone depending on how the court rules, Nanci Gonder, press secretary for the Missouri attorney general’s office, told Bloomberg BNA by e-mail.

The high court might not schedule Trinity’s argument until next term if the state’s legal stance changes after Missouri’s attorney general election next week, Allyson N. Ho, a partner with Morgan, Lewis & Bockius LLP, Dallas, told Bloomberg BNA by e-mail.

The election could also result in a settlement and dismissal of the case, Ho, who co-chairs Morgan Lewis’s appellate practice, said.

Both Trinity and Missouri argue that churches’ relationships with states could change significantly depending on the outcome here.

Long Wait

The parties have waited a long time for oral argument at the Supreme Court, and are still waiting. Briefing finished in August.

The court agreed to hear the case in January, less than a month before Justice Antonin Scalia died unexpectedly Feb. 13, leaving the court with eight justices. Evenly divided decisions leave in place the decision below without setting binding precedent.

The justices badly want to avoid that outcome, Georgetown University Law Center professor Martin S. Ledermansaid at a Sept. 19 Georgetown law school event.

Election Issue

But matters of court staffing aside, the parties may have to wait even longer for oral argument depending on the Nov. 8 election.

Missouri Attorney General and gubernatorial candidate Chris Koster (D) currently represents the DNR, but will soon retire from the position.

Republican attorney general candidate Josh Hawley has taken the church’s side. He filed an amicus brief in support of Trinity on behalf of a Pentecostal Christian denomination.

Even if Koster becomes governor, “The Attorney General has the sole authority to represent the State in court,” the attorney general’s office’s Gonder said.

“If this case is not submitted to the Supreme Court before the administration change on January 9, the next Attorney General, whoever it is, will be responsible for ensuring that the State’s interests are represented as the case concludes,” Gonder said.

If Hawley wins the election and still takes the church’s side, then Supreme Court Justice Samuel A. Alito Jr., who oversees the Eighth Circuit, could “suggest someone to the Court to appoint to defend the judgment below,” Morgan Lewis’s Ho said.

That “scenario would almost certainly require a new round of briefing, with argument likely scheduled for next Term,” Ho said.

It’s also possible that the parties could settle, she said.

Safety Grant Denied

Trinity applied for state funding to resurface its affiliated pre-school and daycare’s playground with tire scrap rubber, the church’s brief says.

The pre-school and daycare is a church “ministry,” but its playground is open to “children from the community” after hours, Trinity says.

The DNR ranked the church’s application fifth out of the 44 grant applications submitted, using “its neutral scoring criteria,” Trinity says.

Missouri’s DNR denied the application, citing Article I, Section 7 of the state constitution.

That provision says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”

“Missouri’s citizens decided 150 years ago to adopt a state constitutional provision preventing state money from being paid directly to churches,” Gonder told Bloomberg BNA.

Religious Discrimination Alleged

Trinity argues that the DNR’s denial based solely on it being a church was religious discrimination that violated the U.S. Constitution’s free exercise and equal protection clauses.

The state argues that the constitution doesn’t require it to subsidize churches.

The U.S. Court of Appeals for the Eighth Circuit rejected Trinity’s claim, in Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779 (8th Cir. 2015).

It would be “unprecedented” to hold “that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church,” the Eighth Circuit said.

Founders, Firefighters

If the church wins, it will effectively undo bans on public funding to churches in more than three-fourths of states, Daniel Mach, director of the American Civil Liberties Union’s program on freedom of religion and belief, said at a panel discussion hosted by the Alliance Defending Freedom, a Christian legal organization.

The ACLU filed an amicus brief supporting the state.

Preventing direct public cash grants to houses of worship is consistent with the vision of the Founders—particularly James Madison—Mach said.

These bans actually benefit churches because it keeps them from fighting each other over subsidies, Mach said.

It also helps protect churches from having to tailor their doctrine to appeal to the government, in an attempt to receive more public funding, Mach said.

But ADF’s senior counsel David A. Cortman said that excluding churches merely because they are churches is a “dangerous principle.”

If a government’s job is to promote the health, safety and welfare of its citizens, that mission should apply to all citizens, Cortman said.

That principle allows public firefighters to put out fires at churches instead of letting them burn, Cortman said.

Mach distinguished emergency services, saying they are universal entitlements, while the grants here were available to a limited number of applicants.

Locke and Load

Both the church and the state’s briefs focus on a U.S. Supreme Court decision that allowed Washington to exclude theology majors from public scholarship funds, Locke v. Davey, 540 U.S. 712 (2004).

The Locke court “focused especially on the minimal burden” that Washington’s exclusion policy placed on the plaintiff’s “right to freely exercise his religion,” the state argues.

Similarly, DNR’s policy placed “no meaningful burden” on the church’s practice of religion, the state says.

The church can still worship, teach and “even resurface its playground as it sees fit,” the state argues.

Trinity argues that this “case is as far from Locke as one can conceive.”

The church “sought to participate in a generally available public benefit program” to protect kids “from cuts and bruises on the playground,” Trinity says.

But “ Locke rejected a free exercise challenge to compel a state to fund the religious training of clergy,” the church says.

The ACLU’s Mach said the state’s case is even easier to make here because Locke didn’t involve direct cash grants to churches.

The high court has never said a state can give such grants, Mach said.

Kimberly Strawbridge Robinson contributed to this report.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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