Supreme Court Considers Church-State Separation Case
The Supreme Court heard oral argument yesterday in a case that ostensibly involves a Missouri program to provide aid to schools to construct safer playgrounds, but which could portend important developments for the relationship between Church and State:
WASHINGTON — The Supreme Court seemed ready to chip away at the wall separating church and state on Wednesday, with several justices suggesting that states must sometimes provide aid to religious groups. The case concerned a Missouri program to make playgrounds safer that excluded ones affiliated with churches, but it had implications for all kinds of government aid to religious institutions.
“This is a clear burden on a constitutional right,” Justice Elena Kagan said of the exclusion in the playground program.
Justice Neil M. Gorsuch, the court’s newest member, said the program amounted to “discrimination on the basis of status of religion.”
“We know that’s happened in this case, right?” he asked, leaving no doubt that he thought the answer was yes.
Justice Sonia Sotomayor was the most consistent voice on the other side, though she seemed to be in the minority.
“They’re just saying,” she said of the state, “we don’t want to be involved with the church.”
The question in the case, Trinity Lutheran Church v. Comer, No. 15-577, is whether officials in Missouri were entitled to reject an application from a Lutheran church for a grant to use recycled tires to resurface a playground.
Answering that question required the justices to consider doctrinal crosscurrents, including what earlier cases have called “the play in the joints” between two clauses of the First Amendment, which bar government establishment of religion and guarantee its free exercise.
“It’s a hard issue,” Justice Kagan said. “It’s an issue in which states have their own very longstanding law. It’s an issue on which I guess I’m going to say nobody is completely sure that they have it right.”
The Missouri Constitution bars spending public money “directly or indirectly, in aid of any church,” and the state Supreme Court has called for “a very high wall between church and state.”
Thirty-nine states have constitutional provisions limiting state aid to religious groups, Justice Sotomayor noted. “We don’t want, as a country — well, the vast majority of states — to fund houses of worship,” she said.
David A. Cortman, a lawyer for the church, said it sought only to protect children of all faiths from injury and could not use the rubber in its religious work. He argued that the state Constitution violated equal protection principles and the First Amendment’s guarantee of free exercise of religion.
“All we’re talking about is a safer surface on the playground for when kids play,” he said.
Justice Sotomayor said that Missouri was not interfering with the church. “You have a playground,” she said. “No one is taking the playground away from you.”
James R. Layton, a lawyer for the state, said it should have leeway to decide for itself whether and how much to help religious groups, and he noted that the program was a competitive one. “We don’t want to be in a position, for example, in this case, where we are selecting among churches,” he said.
A 2004 Supreme Court decision, Locke v. Davey, allowed Washington State to offer college scholarships to all students except those pursuing a degree in devotional theology. Mr. Cortman said that case involved direct support for religion. Playgrounds, he argued, were a different matter.
Justice Ruth Bader Ginsburg asked whether the church could “demand as a matter of federal constitutional right that that playground be funded, even though they have an admissions policy that favors members of their church?”
Mr. Cortman said yes. “They have a free exercise right to religious autonomy to decide who their members are,” he said.
As the argument progressed, several justices explored ways to rule in favor of the church on relatively narrow grounds. Justice Stephen G. Breyer suggested that two distinctions mattered: whether the state program concerned health and safety and whether it was universal or selective.
Universal programs providing for public safety, like police protection, he said, could not be denied to religious groups. He seemed to indicate that the playground program fit those criteria.
Mr. Layton said the playground program was not available to everyone, as funds were limited and so required choosing among applicants. But Justice Kagan said the program was not selective in the relevant sense.
“Essentially, this is a program open to everyone,” she said, adding that it “happens to be a competitive program, but everyone is open to compete on various neutral terms.”
Justice Samuel A. Alito Jr. asked about specialized programs to protect churches and synagogues from terrorist attacks and hate crimes. Mr. Layton said the Missouri Constitution would bar using state money for them.
Chief Justice John G. Roberts Jr. asked whether the state could bar students attending religious schools from group tours of the state capitol.
Mr. Layton said such visits are open to all. “Everyone who comes to the capitol gets a tour,” he said.
The justices considered a last-minute wrinkle in the case. Last week, Gov. Eric Greitens of Missouri, a Republican, announced a change in state policy. The state would no longer discriminate against religious groups in evaluating grant applications for programs like the one at issue in the case, he said.
“Why isn’t this case moot?” Justice Stephen G. Breyer asked.
Lawyers on both sides said the development did not make the case moot because Mr. Greitens or the next governor could reverse course.
“The political winds could change,” Mr. Cortman said. Mr. Layton echoed the point, though he noted that he had been asked to defend a position the state no longer holds.
Late in the argument, perhaps sensing that she might be on the losing side on the merits, Justice Sotomayor returned to the theme, saying the two sides were actually in agreement.
“If we have no adversity,” she asked, “hasn’t this case become mooted?”
Buzzfeed Supreme Court reporter Chris Geidner notes the same skepticism about Missouri’s all-out ban on religious schools participating in the aid program, as does SCOTUSBlog’s Amy Howe in her analysis of yesterday’s oral argument:
Arguing on behalf of Trinity Lutheran, David Cortman reiterated that the church’s preschool had been excluded from the state-run grant program solely because it was operated by a church. Ginsburg didn’t seem to see a problem with that proposition. She noted that in 1947, in a case called Everson v. Board of Education, the court had ruled that the Framers didn’t want tax money going to maintain churches or property. Shouldn’t that principle, she asked, govern here?
Cortman responded that this case is different, because the state can’t deprive religious groups of general government benefits like funding for playground resurfacing. But Sotomayor expressed doubt that the playground could be separated out from the church’s religious work. The playground is part of the ministry of the church, she suggested. Cortman urged the justices to focus on where the money goes; here, he emphasized, the money goes only to the playground resurfacing.
Sotomayor also observed that there has been a long history in the United States of states not wanting to fund churches; they should be free to do that in cases like this. We seem to be confusing funding, she suggested, with the practice of religion. The church isn’t going to close without a new playground surface, she stressed, so she was skeptical that this case actually implicates the right to free exercise of religion.
Justice Samuel Alito pushed back against the idea that provisions like the state constitutional amendment on which Missouri relied to deny funding to Trinity Lutheran reflect some sort of “honorable historical tradition.” Instead, he asked somewhat rhetorically, aren’t they based on “anti-Catholic bigotry”?
James Layton, who is now an attorney in private practice but was the solicitor general of Missouri when the state filed its briefs in the case last year, argued on behalf of Missouri. Layton told the justices that the state had barred funding from going to religious institutions because it wanted to avoid the appearance that it was both choosing among different churches and making physical improvements to churches.
Layton’s argument did not seem to resonate with most of the justices. Citing a variety of federal programs that provide funding that could flow to religious institutions – for example, a Department of Homeland Security program to improve security near high-risk targets like synagogues or mosques and a program to repair buildings damaged by the bombing at the federal building in Oklahoma City – Alito pressed Layton on whether the state’s policy would bar similar programs. Layton held firm, telling Alito that it would because state money cannot be used for religious institutions.
That response prompted Kagan – who during Cortman’s argument had seemed to be leaning toward the state – to ask whether the state’s position would also bar the state from providing police and fire protection to churches. Layton responded that it would not, reasoning that public safety is a service, rather than something for which the state gives funding to a religious group.
Justice Stephen Breyer seemed unconvinced. He first asked Layton whether the U.S. Constitution would allow a state to declare that it wouldn’t provide a church with police or fire protection. When Layton responded that would not, Breyer then moved on to what seemed to him to be the logical next step: How does the Constitution then allow Missouri to deny money for a new playground surface to a daycare center, whose students could face all kinds of potential hazards – ranging from a skinned knee to tetanus and a broken leg – from the older, less safe playground?
Alito seized on what he clearly viewed as a potential weakness in the state’s defense of its policy. How do you distinguish, he asked Layton, between a program that is open to everyone who wants the funding and a program like the playground resurfacing program that awards grants based on purely neutral criteria?
Other justices seemed to agree. Kagan suggested to Layton that, at bottom, the playground resurfacing program is open to everyone; the state is just depriving one specific group of nonprofits – religious ones – from applying. In a statement that bodes poorly for the state, she declared that “this is a clear burden on a constitutional right” because religious individuals and groups are barred from competing for an otherwise neutral benefit.
Gorsuch followed up on this line of questioning, asking Layton to explain why excluding religious groups from selective programs would be preferable to excluding them from a general benefit. Layton responded that selective programs tend to have more public visibility than the general ones, and can effectively amount to a government endorsement of the religious group and its mission. But Gorsuch was dubious. How, he asked, do we draw those lines?
Breyer worried aloud that Layton’s reliance on the differences between selective and general benefits would create its own set of problems. If we accept your argument, he told Layton, we will see “litigation forever.” “I am afraid of that one,” he concluded.
While this argument over whether or not to provide a school with financial assistance to construct a safer playground may seem like a minor issue, how the Court rules here could have major implications for Church-State relations going forward at a wide variety of levels. If it adopts the full position advocated by the Church, for example, then the Court would potentially be opening the door to allowing taxpayer dollars to go to a wide variety of otherwise religious activities up to and including things such as school vouchers for students to go to purely religious schools. Adopting the position of the state, on the other hand, would mean condoning a state of affairs where some states bar religious institutions from participating in virtually any program that used state dollars could lead to absurd results, such as a bar for aid for subsidized lunch or breakfast for poor students and other aid programs run by the state. Additionally, adopting the distinction that the attorney for Missouri seized on late in his argument between general benefits such as police protection and specific benefits such as participation in the grant program such as the one at issue in this case would, as several Justices noted, likely lead to a future load of litigation over the specifics of which types of aid counted as “general” and which should be counted as “specific.” This is likely one reason why the idea of declaring the case moot based on the fact that the state has changed its policy under a new Governor may appeal to the Justices since it would allow them to avoid making a decision that would do little but set up a whole new line of lawsuits that would eventually make their way to the Court to demand resolution. If they do choose this final option, then it’s likely that we’ll hear about it relatively quickly. If we don’t then we’re likely not to get a decision in this case until the end of the Court’s term in June.
As I’ve said before, it’s often a mistake to try to guess how a Judge will rule based on oral argument alone. Sometimes, a Judge will ask questions during this process designed to test what seem to be flaws in the argument of one side or another even though they happen to agree with its ultimate conclusion. When dealing with a panel of Judges such as the Supreme Court, they’ll often use oral argument as part of an opening salvo to attempt to convince one of their fellow Judges to join them on one side or another of a particular case. And, sometimes, they’ll just ask questions for the heck of it, or because it’s part of the way that they process their own understanding of the arguments that both sides are making. All that being said, it does appear from the oral argument that most of the Justices are skeptical of the state’s hard-line position that its Constitutional Amendment should be so broadly interpreted as to permit the state to bar a religious school from participating in a program with an entirely secular purpose, in this case making playgrounds safer by using materials that reduce injuries. Where that leads to in terms of a decision is something we’ll have to wait until June to find out.
Here’s the transcript of the oral argument: