Photographer: Mark Wilson/Getty Images

Supreme Court Voices Support for Church Seeking Playground Funds

  • Justices hear arguments on church seeking playground funds
  • Gorsuch among those skeptical of Missouri church-funding ban

U.S. Supreme Court justices from across the ideological spectrum voiced support for a Missouri church that was denied state funds for a new school playground surface, as the court took up a major religious-rights case.

A chorus of justices -- including the newly appointed Neil Gorsuch and Democratic appointees Elena Kagan and Stephen Breyer -- voiced skepticism about a Missouri policy that banned the church from participating in the funding program.

"This is a clear burden on a constitutional right," Kagan said. She said the state’s interest had to "rise to an extremely high level" to justify excluding the church.

Missouri is among about three dozen states whose constitutions bar public dollars from going to religious institutions. The high court’s ruling could have implications for school voucher programs in some of those states.

The program uses scrap tires to resurface playgrounds. Trinity Lutheran Church, which runs a preschool in the central Missouri town of Columbia, was one of 44 applicants for funding in 2012. The Missouri Department of Natural Resources ranked Trinity fifth on that list, but ultimately rejected the application and awarded grants to 14 other applicants.

Trinity says the rebuff violated its U.S. constitutional rights to free exercise of religion and equal protection.

Gorsuch’s Debut

Gorsuch said relatively little during the hourlong session, weighing in only at the end to question James Layton, the lawyer defending the Missouri policy. Layton had previously said Missouri couldn’t withhold general police and fire protection from churches.

Gorsuch said he didn’t understand the distinction Layton was making.

"How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs, first?" Gorsuch asked. "And second, how do we tell the difference between the two, if that’s the line we’re going to draw?"

Breyer said Layton’s position would mean that "we proliferate litigation forever."

Layton got his strongest support from Justices Sonia Sotomayor and Ruth Bader Ginsburg.

Confusing Issues

"We seem to be confusing money with religious practice," Sotomayor said. "I don’t think the two are tied. This church is not going to close its religious practices or its doors because its playground doesn’t have these tires."

She added, "No one is asking the church to change its beliefs."

Ginsburg asked whether the church would still be entitled to money even if its preschool accepted only Lutheran children.

The church’s lawyer, David Cortman, answered yes to that question. "They have a free exercise right to religious autonomy to decide who their members are," he said.

Until the argument, the case had appeared in danger of being derailed by a last-minute policy change. Missouri’s new governor, Republican Eric Greitens, said last week churches would be eligible for the grants in the future.

In another late twist, the Missouri attorney general’s office bowed out of the case this week. The office filed a letter with the court Tuesday saying it anticipates it will be defending the governor’s new policy and wanted to avoid "taking inconsistent positions on appeal in the different cases."

Layton’s Hands

The state left the Supreme Court case in the hands of Layton, who had been handling the lawsuit as a state government lawyer but now works as a private attorney.

The nine justices, however, spent only a few minutes on those issues Wednesday, suggesting they would resolve the underlying constitutional questions.

The court agreed to take up the case in January 2016. A month later, Justice Antonin Scalia died, leaving the court shorthanded and creating the possibility of a 4-4 split. The court finally scheduled the case for its last argument session of the current term, coinciding with Gorsuch’s swearing-in as the ninth justice last week.

A divided federal appeals court upheld the exclusion of Trinity, pointing to a 2004 Supreme Court ruling that said states that offer college scholarships can deny them to students majoring in theology.

The case, which the court is expected to decide by the end of June, is Trinity Lutheran Church v. Comer, 15-577.

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