Civil and Human Rights

Gorsuch prepares for first blockbuster case

By Bill Mears

A playground at a Missouri church is at the heart of the first big blockbuster case that Justice Neil Gorsuch is primed to hear in his newly assumed role as the ninth member of the Supreme Court.

The case of Trinity Lutheran Church deals with a double dose of contentious issues: religious freedom and taxpayer funding, all playing out before a fully stocked Supreme Court bench.

The Christian church in Columbia, Mo., sued after being denied state funds to improve the surface of a playground used by its preschool. The program gives grants to nonprofits seeking a safer recreational environment for children, and Trinity Lutheran wanted funds to replace the gravel with softer, recycled synthetic rubber.

With Gorsuch participating in only his third public session, the high court on Wednesday is set to consider whether the exclusion of churches from the government aid program violates the Free Exercise and Equal Protection clauses of the Constitution.

Missouri’s law — similar to those in about three-dozen other states — prohibits direct government aid to educational institutions that have a religious affiliation.

But last-minute intervention by the state’s top leader has added further uncertainty to the outcome of the case.

Last week, Missouri Republican Gov. Eric Greitens announced a change to state policy, allowing religious groups and schools to receive taxpayer grants for certain projects, including playgrounds. The Supreme Court then asked the legal parties to explain whether that makes the case moot. The justices could decide later Tuesday to cancel the arguments, leaving the issue unresolved for now, or to proceed on Wednesday.

Should the case move forward, Gorsuch will be closely watched.

“With Justice Gorsuch on the bench, who has been fairly protective of religious liberty rights, and indeed apparently fits President Trump’s litmus test of a pro-evangelical religious liberty, everybody will be looking at that case,” said Elizabeth Wydra, president of the left-leaning Constitutional Accountability Center. 

The Supreme Court accepted the petition for review back in January 2016, when Justice Antonin Scalia was still the senior conservative. His death a month later kept the case on hold, possibly because the eight justices believed they would ultimately tie. Such splits mean no nationwide precedent is set.

Trinity Lutheran’s high-profile case was finally put on the argument schedule for April, just in time for Gorsuch to perhaps cast the deciding vote.

Soft Landings, Hard Consequences 

Trinity Lutheran operates its Child Learning Center to serve families, incorporating “daily religion and developmentally appropriate activities in a preschool program.”

To minimize injuries on its playground, it applied to the state’s “Scrap Tire Surface Material Grant” program, funded by a 50-cent tax on the purchase of new tires. The church says its application ranked fifth out of 44 other nonprofits but was ultimately denied.

Missouri’s constitution says “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” 

“Missouri isn’t toeing the line of an even-handed exercise of government neutrality. Rather, it is teeter tottering off the edge into heavy-handed hostility toward religion and religious entities,” said James Gottry, legal counsel at the Alliance Defending Freedom, which represents the church. “Offering an environmentally friendly playground surface that enhances the safety of children is a laudable goal, even if some of the students and community members benefit from that surface while on the property of a religious institution.”

But the state argues, “This is not a ‘public forum’ case.” In its brief to the Supreme Court, government lawyers call this “a case of the state choosing where to spend limited funds over which it ‘retains plenary control.’”

The Constitution’s First Amendment speaks on religion in the public sphere with two important provisions. The Establishment Clause prohibits the government from unduly preferring or promoting religion over non-religion, and vice-versa. And the Free Exercise Clause protects Americans’ rights to practice their faith, absent a “compelling” government interest.

The Supreme Court has never fully answered whether “free exercise of religion” compels states to provide taxpayer funds to religious institutions, through neutral means that do not promote faith-based beliefs or practices.

But the justices have acted on the margins. A 2002 high court ruling upheld Ohio’s plan to directly give parents vouchers for private and parochial school tuition.  

Teachers unions worry a ruling favoring Trinity Lutheran would add nationwide momentum for private school voucher programs. And some organizations fear a sweeping conservative-majority court opinion would lead to discrimination with the backing of government money.  

“It seems quite likely that the [Trinity] Learning Center would refuse to admit a child of same-sex or transgender parents, or even a child whose parents hailed from a differing religious tradition,” said lawyers for Lambda Legal, an advocacy group for the LGBTQ community. 

Gorsuch Factor 

Into the debate jumps Gorsuch, who took heat from Senate Democrats during his confirmation over past cases dealing with religion while serving as a federal appeals court judge in Denver.

Perhaps his highest-profile case was the 2013 concurrence supporting the right of for-profit, secular institutions (and individuals too, he argued) to oppose the Obama’s administration mandate to provide contraceptives to their workers. Gorsuch affirmed his past ardent commitment to religious freedom against claims of government “intrusion.”

In the so-called “Hobby Lobby” case, the judge concluded, “For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”

Gorsuch later supported the right of religious nonprofits to challenge the contraceptive coverage mandate. The Supreme Court later partially vindicated Gorsuch’s views on both cases.

Besides the Trinity case at hand, the Supreme Court in coming days could accept two other religious liberty disputes for future review: Whether a Colorado baker and a Washington state florist can be compelled to do business with same-sex couples, which they say would violate their “sincerely-held” religious beliefs.
Legal experts say Gorsuch’s views could prove decisive. 

“These religious liberty issues have been ones where the court has been deeply split,” said Thomas Dupree, a former Bush deputy assistant attorney general. “With the arrival of Justice Gorsuch, and the possibility of having a 5-4 conservative majority, I think you’re going to see the court taking on more religious liberty cases, because now there are in a position to resolve these cases on the merits, where on an eight-justice court, they would have been deadlocked.” 

The case is Trinity Lutheran Church of Columbia, Inc. v. Comer (15-577). A ruling is expected in late June. 

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