The constitutionality of a state’s refusal to include a daycare center in a playground resurfacing program was argued before the U.S. Supreme Court April 19.
Justices on both sides of the court’s ideological divide vigorously questioned the state of Missouri’s position in rejecting the Trinity Lutheran Church Learning Center in Columbia, Mo., from participation in the program. Much of the high court’s reaction to the state – which cited the Missouri constitution’s ban on government funding of religion in its decision – focused on health and safety concerns for children and left supporters of the center hopeful about the justices’ opinion.
The Supreme Court is expected to issue a ruling before it adjourns in late June or early July.
“The entire legal team representing and supporting the church was encouraged by the questions that came from members of the court whom we expected to be hostile toward the case,“ said Travis Wussow, general counsel and vice president for public policy of the Southern Baptist Ethics & Religious Liberty Commission (ERLC), in written comments for Baptist Press. “Some [justices] seemed at times incredulous at the arguments advanced by the state of Missouri.
“We are praying for a positive outcome in this case and specifically that the court would articulate a clear precedent that allows churches and people of faith equal access to resources in the public square,“ Wussow said.
Michael Farris, president of Alliance Defending Freedom (ADF), which represented Trinity Lutheran in the case, said, “Religious people should not be treated as second-class citizens, especially when it comes to health and safety issues.
“A lot of the justices today seemed particularly concerned about the fact that the discrimination context here was health and safety,“ Farris told reporters outside the court building. “I feel very encouraged by the hearing today. We’re very hopeful.”
The legal conflict involves the Missouri Scrap Tire Grant Program, which provides grants to nonprofit organizations – minus church-affiliated ones – for safer, rubberized surfaces for children’s playgrounds.
Though the facts of the case may not be striking, the decision could prove to be highly significant in the high court’s ongoing decision-making regarding the First Amendment’s clauses protecting the free exercise of religion and barring government establishment of religion.
ADF Senior Counsel David Cortman, arguing for Trinity Lutheran, told the justices the state’s exclusion of the center “violates this court’s free exercise principles.“ The free exercise clause prohibits the government from “forcing a choice between the exercise of religion and receiving either a government benefit, right or privilege,“ he said.
James Layton, former solicitor general of Missouri who argued on behalf of the state, told the court including Trinity Lutheran’s center in the program would not violate the establishment clause but the state does not want “to come to the edge“ of violating it.
Associate Justices Elena Kagan and Stephen Breyer – considered part of the court’s liberal wing – joined Chief Justice John Roberts and others in challenging Layton regarding the state’s position.
“[Y]ou’re depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification,“ Kagan told Layton. “[I]t does seem as though this is a clear burden … on a constitutional right.”
The ERLC filed a friend-of-the-court brief with the high court in support of Trinity Lutheran, contending the exclusion of churches from neutral government programs does “not fulfill the ‘benevolent neutrality’” long embraced by the justices. In its brief, the ERLC said it is not just concerned with “the unjustified treatment“ of Trinity Lutheran “but also with the overall trend of churches and religious actors being excluded from participating in government programs.”
Missouri’s new governor, Eric Greitens, threw a wrinkle into the case April 13 when he instructed the Department of Natural Resources, which manages the tire grant program, to make religious organizations eligible to receive grants.
“The fact is 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,“ Greitens said. “We should be encouraging that work.”
John Yeats, the Missouri Baptist Convention’s executive director, said in a written release accompanying Greitens’ announcement, “Governor Greitens ‘gets’ what our Founding Fathers understood: that faith is an integral part of our national identity. There are common places where people of faith and state can work together to accomplish the common good such as safety, education, rehab, foster/orphan care and other contexts where qualified religious organizations meet and, in most cases, exceed the state requirements.”
Although at least one court member – Associate Justice Sonia Sotomayor – raised the question of mootness, the majority of the justices did not demonstrate concern about whether they should rule on the merits of the case in the wake of Greitens’ action.
The case is Trinity Lutheran Church v. Comer.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press, news service of the Southern Baptist Convention.)