Kagan, Breyer Question Mo. Church Funding Ban

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By Patrick L. Gregory

Several justices seemed skeptical about Missouri’s ban on public funding to churches during oral argument at the U.S. Supreme Court April 19 ( Trinity Lutheran Church of Columbia, Inc. v. Comer, U.S., No. 15-577 , argued 4/19/17 ).

Trinity Lutheran Church is challenging Missouri’s denial of a playground safety grant to its preschool. Missouri relied on a state constitutional provision prohibiting public funding of churches.

Justices Elena Kagan and Stephen Breyer joined the court’s more conservative bloc in questioning whether the state could exclude the church from its grant program because it’s a religious institution.

The outcome could undo 39 states’ bans on such funding.

Missouri’s denial didn’t violate Trinity Lutheran’s free exercise rights because the state’s grant program was selective—available only to some— rather than universally available, James R. Layton of Tueth, Keeney Cooper Mohan Jackstadt P.C., arguing in favor of the ban as private counsel, said.

Justice Neil M. Gorsuch, made his presence known late during his third day of argument, asking if discrimination on the basis of religious exercise is any more preferable if done through a selective grant program rather than a universally available one.

Justice Sonia M. Sotomayor raised mootness concerns that surfaced last week after the state’s governor announced a reversal of the policy excluding churches from the grant program.

The U.S. Court of Appeals for the Eighth Circuit rejected Trinity’s argument that Missouri’s ban violated its free exercise and equal protection rights in Trinity Lutheran Church of Columbia, Inc. v. Pauley.

Church-State Separation

David A. Cortman of Alliance Defending Freedom, Washington, arguing for the church, said the safety grant was denied solely because a church operates the preschool.

That violates the U.S. Constitution’s free exercise clause, Cortman said.

But Justice Ruth Bader Ginsburg suggested state aid to the church could be problematic under the establishment clause.

In “1947, this Court said in no uncertain terms” that the Framers didn’t want “tax money imposed to pay for building or maintaining churches or church property,” Ginsburg said, citing Everson v. Bd. of Educ. of the Twp. of Ewing.

Doesn’t “that fit this case?” Ginsburg asked.

Everson also warned against not depriving “religious people or organizations of general government benefits,” Cortman said.

There’s a difference between funding religious activities and funding a religious organization’s secular activities, he said.

Sotomayor pressed Cortman on whether there was such a difference here.

Based on the church’s bylaws and advertisements, “I believe that this playground is part of the ministry of this church,” Sotomayor said.

“How do you separate out its secular function from its religious function?” she asked.

Both Sotomayor and Kagan suggested that the playground could be used for prayers, for example.

Police, Health

Justice Samuel A. Alito Jr. asked whether certain federal grant programs would be permissible as state programs under the Missouri Constitution if given to synagogues or mosques, such as funding for structures that might protect them from hate crimes.

Layton responded that the state constitution would prohibit state funding for any such physical additions to houses of worship.

Kagan and Breyer had similar concerns.

If Missouri’s constitution forbids any public funding to churches, then “why can the state provide police protection or fire protection?” Kagan asked.

Breyer posited hypotheticals in which the state declined to provide vaccination programs and stopped “helping children who get sick at school.”

Layton said that police and public health benefits are different because they are “universal.”

In contrast, the state’s grant program here is “selective,” he said.

Kagan acknowledged the distinction, but said the question still remains “whether some people can be disentitled from applying to that program” based solely on religious status.

Line Drawing

Breyer said that states provide selective grants even in “areas that are critical, like police, fire, health.”

Therefore, “I’m afraid of” drawing a line here based on whether programs are universal or selective, Breyer said.

Similarly, Gorsuch asked how the court could “draw the line between selective and general.”

“One could seem to play with that line forever,” he said.

Regardless of line drawing questions, it was clear that there was “discrimination on the basis of status of religion,” Gorsuch suggested.

“We know that’s happened in this case, right?” he asked.

Layton acknowledged that “the decision here was made because it was a church.”

Strong Principle

The state had a valid interest in not wanting “to come to the edge of violating the establishment clause,” Layton argued.

Kagan accepted that the state might have such an interest.

“But here’s the thing,” Kagan said.

There’s a “constitutional principle” that’s “as strong as any constitutional principle that there is, that when we have a program of funding,” that “everybody is entitled to that funding,” regardless “whether or not they are a religious institution doing religious things,” she said.

“As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things,” Kagan said.

“And I would have thought that that’s a pretty strong principle in our constitutional law,” she said.


The court asked the parties April 14 to explain why the case wasn’t moot due to the state’s reversal of the ban.

Missouri Gov. Eric Greitens (R) announced that the ban would be reversed in an April 13 press release.

The Missouri attorney general’s office, which was scheduled to defend the ban, announced that it was recusing itself due to a potential “positional conflict” it could face if required to defend the new policy in future litigation.

Layton had been scheduled to defend the ban on behalf of the office as a special assistant attorney general. Instead, the office terminated that appointment, but appointed him to defend the ban as private counsel.

Sotomayor asked whether the state’s unwillingness “to fight this case” meant that it was “manufacturing adversity by appointing” Layton.

“If we have no adversity, hasn’t this case become mooted?” she asked.

Ginsburg said she didn’t believe the case was “technically” moot.

However, she suggested that the state’s “very recently” changed policy “would be a factor in our decision whether we thought this was an appropriate case to review” if the court hadn’t already agreed to hear the case.

Parties Agree Case Should Proceed

Missouri Department of Natural Resources Director Carol S. Comer—the respondent here— adopted the state attorney general’s office’s April 17 letter, which argued that the case isn’t moot.

Comer and Trinity Lutheran listed similar reasons why the court shouldn’t dismiss the case for mootness.

Missouri’s current governor, or a future administration, could simply reverse the ban, the parties said.

Further, the last-minute timing of the reversal raises doubts about whether the ban is permanent, they said.

Moreover, Missouri courts could enjoin the new policy if private litigants challenge it, the parties said.

They said such a challenge is likely based on news reports.

The American Civil Liberties Union and Americans United for Separation of Church and State argued that the case is moot, in an April 18 amicus letter to the court.

The case is moot because the policy reversal means that the church “has received all the substantive relief that it sought in its complaint,” the letter said.

The court didn’t issue an order before hearing argument but could dismiss the case as improvidently granted, or vacate and remand the case without a written opinion.

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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