4 Big Questions About the Supreme Court’s New Religious Freedom Case
Fred Lucas /
Missouri’s new governor introduced a fresh dynamic into what was set to be the leading religious freedom case argued before the Supreme Court this year, and the first major case that new Justice Neil Gorsuch will hear.
“We have hundreds of outstanding religious organizations all over the state of Missouri,” @EricGreitens says.
The Supreme Court will hear arguments Wednesday in the case of Trinity Lutheran Church v. Pauley that could determine to what lengths the government may ban public funding for religious affiliated organizations in a state that has one of the most sweeping restrictions.
In a surprise move Thursday, Gov. Eric Greitens, a former Navy SEAL who took office in January, announced that religious organizations can qualify after all for state funds. In doing so, the Republican governor made an indirect reference to the case before the high court this week.
A Missouri program offers grants to nonprofit organizations to install rubber surfaces made from recycled tires, to replace gravel as a way to make playgrounds safer.
In 2012, citing a provision in the state constitution called the Blaine Amendment, the state denied Trinity Lutheran Church’s application for the resurfacing funds. It did so even though the church in Columbia, Missouri, ranked ranked fifth out of 45 applications in meeting criteria set by the Missouri Department of Natural Resources.
But Trinity contends the grant wouldn’t violate the U.S. Constitution’s Establishment Clause, which prohibits the government from preferential action for or against a specific religion.
And, the church argues, singling out a church for exclusion from the program violates the First Amendment right to free expression of religion, as well as the Equal Protection Clause prohibiting the government from treating individuals arbitrarily under the law.
Here are four key questions in the case, according to legal experts from both sides:
1. What is the impact of the governor’s decision?
“The governor’s actions make the case moot,” Alex Luchenitser, general counsel for Americans United for the Separation of Church and State, told The Daily Signal. “This deprives the U.S. Supreme Court of making a real ruling.”
However, if Missouri doesn’t argue the case, the church still could seek damages for legal expenses and time spent on the case, particularly if the state seems to have admitted it was in error, said Carrie Severino, chief counsel for the Judicial Crisis Network.
The case likely will proceed, but the governor’s decision presents more options for the high court, said Aaron Streett, chairman of Houston-based Baker Botts’ Supreme Court and Constitutional Law Practice.
“The timing of the [governor’s] announcement is interesting and it will at least affect oral arguments,” Streett told reporters during a conference call Friday sponsored by the Federalist Society. “This gives the court the option to avoid the case if it takes that route.”
Greitens announced that Missouri would change the policy—though the governor didn’t directly address how the state would proceed in the case before the Supreme Court.
“Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids,” Greitens said, adding:
We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day. We should be encouraging that work. So, today we are changing that prejudiced policy.
Severino questions the governor’s ability to make the change.
“It’s not just a policy, as in reversing an executive order, it’s rooted in the state’s constitution,” Severino told The Daily Signal. “It sounds like a political loser to stand with this. The [state’s law] is so extreme, but this could be more complicated.”
Severino, Streett, and Luchenitser all said the governor’s action could be litigated through state courts.
2. How will the case affect other ‘Blaine Amendments?’
Missouri is one of 37 states with a constitutional restriction such as the Blaine Amendment limiting use of public money for religious organizations, but Missouri has one of the strictest, Severino said.
Missouri’s Blaine Amendment has been in the state constitution since 1875.
The provision is named for James G. Blaine, a congressman (and later senator and secretary of state) who sought in the 1870s to get a similar amendment to the U.S. Constitution. The Maine Republican’s effort failed, but numerous states adopted similar amendments.
The Missouri state constitution reads:
Section 7. Public aid for religious purposes—preferences and discriminations on religious grounds.—That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
Streett said a Supreme Court ruling in favor of Trinity Lutheran Church wouldn’t necessarily strike down the other state laws, and might not even affect the Missouri law if the decision is narrow.
“It will likely be tailored to the particular facts of this case,” Streett said. “Many other states have similar laws, but they don’t apply as broadly as in Missouri.”
3. What’s the legal precedent?
It would seem like a simple case, Streett said, looking at several legal precedents that clearly prevent a religious believer from choosing between his or her faith and a state benefit.
Some examples include a case in which unemployment benefits couldn’t be withheld from a Seventh-day Adventist.
“The state concedes they are only excluding Trinity because it is a church, and they aren’t concerned with proselytizing and not concerned with discrimination,” Streett said of the Missouri case.
Further, the Supreme Court has held that allowing churches to be eligible for grants that are available for everyone else is constitutional, he said.
But it’s not simple, he said, because of a 2004 case, Locke v. Davey, in which the Supreme Court ruled 7-2 that Washington state can prohibit state-funded scholarships from going to students pursuing theology degrees.
The Missouri and Washington cases are very different, however, Streett said.
“At least Washington state was not hostile to religion, and would even provide scholarships to religious colleges, it just would not fund the study of theology,” Streett said. “It’s not clear Missouri has a clear historical interest.”
Luchenitser, of Americans United for Separation of Church and State, disagrees.
“I can’t ever predict how the court would rule on a particular case,” he said. “I would hope that Justice Kennedy would adhere to his decision in Locke v. Davey.”
Justice Anthony M. Kennedy sided with the majority in that case.
4. What should we expect from Gorsuch?
Gorsuch, who was sworn in April 10 as a Supreme Court justice in a Rose Garden ceremony, has ruled in three religious liberty cases that came before him as a judge on the 10th Circuit Court of Appeals.
Two challenged the Obamacare mandate that employers pay for birth control and abortion-inducing drugs for employees. Gorsuch sided with the employers, retailer Hobby Lobby and the Little Sisters of the Poor, a Catholic order of nuns, in the two separate cases.
In a lower-profile case, Yellowbear v. Lampert, Gorsuch ruled in favor of an inmate who said prison officials denied his religious freedom by not accommodating his Native American faith.
However, the newest justice has yet to rule on a funding case. So this could be different territory.
“His record on the 10th Circuit is one that supports free exercise of religion, but as a constitutionalist judge, I predict he will hear the arguments and judge both sides,” Streett told The Daily Signal during the conference call.