By JAMES ARNOLD
(Editor’s Note: This commentary originally appeared on the ADF [Alliance Defending Freedom] Blog on April 26, 2017. See www.adflegal.org. The article is reprinted here with permission; all rights reserved.
(James Arnold is the legal content manager for ADF. He wrote this post about Trinity Lutheran Church of Columbia, Mo., applying for a state grant to resurface a playground adjacent to its licensed preschool and daycare, called the Child Learning Center. The state of Missouri refused to give the grant on grounds of separation of church and state. See Mike Manno’s commentary in last week’s Wanderer, April 27, 2017, p. 5A.)
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In coverage of the Trinity Lutheran hearings at the Supreme Court, over at The New York Times the opening paragraph seemed to sympathize with the state:
“The Supreme Court seemed ready to chip away at the wall separating church and state on Wednesday [April 19], with several justices suggesting that states must 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.”
The Times author nevertheless seems convinced that the justices will rule for Trinity Lutheran, but perhaps in a narrow ruling. We won’t know until the High Court issues its ruling.
CNN captures the case this way:
“The case involves an initiative launched by Missouri in 2012 to encourage schools to use recycled tires to produce safer playground surfaces.
“But the religious liberty battle began when a preschool run by Trinity Lutheran Church was denied a state grant to participate in the program.
“Missouri said that under its Constitution, state funds couldn’t be used for religious activities.
“Trinity Lutheran sued. Its lawyers argued that the state’s action constituted religious discrimination in violation of the federal Constitution’s Free Exercise and Equal Protection Clauses. On Wednesday [April 19], the justices tackled the case that could produce one of the most important opinions of the term, unless it fades away because of a procedural snag that surfaced last week.”
That “procedural snag” refers to Missouri Gov. Eric Greitens issuing a statement saying that “his administration is reversing policies that previously discriminated against religious organizations.” At the time, ADF Senior Counsel David Cortman, who argued the case before the Supreme Court, noted that the “new directive doesn’t resolve the discriminatory actions that were taken against Trinity Lutheran’s preschool.”
NPR also sympathizes with the state. While it quotes David Cortman once and Gail Schuster (the director of the Trinity Lutheran Child Learning Center) once, it focuses on the perspective of the ACLU’s Daniel Mach, quoting him repeatedly over the course of nearly a dozen paragraphs.
NBC does an admirable job of offering both sides a similar amount of space for their arguments. First, the argument for Trinity Lutheran:
“ ‘This religious exclusion wrongfully sends a message that some children are less worthy of protection simply because they enjoy recreation on a playground owned by a church,’ said David Cortman of Alliance Defending Freedom (ADF), a conservative organization representing Trinity Lutheran.
“He argued that government should be neutral toward religion and that blocking the church from a widely available public program ‘imposes special burdens on nonprofit organizations with a religious identity.’
“That amounts to ‘an undeniable hostility to religion,’ Cortman said.”
And then, immediately following that, the argument for the state of Missouri:
“Missouri responded that the constitutional provision does nothing to interfere with a church’s religious activities.
“ ‘Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray, and practice any other aspect of its faith however it wishes. The state merely declines to offer financial support,’ said James Layton, Missouri’s former solicitor general.
“The U.S. Constitution prevents the government from prohibiting the free exercise of religion, Layton said. ‘It does not guarantee churches opportunities for public financing’.”
Almost every media outlet conceded that the justices appeared to favor Trinity Lutheran, and SCOTUSblog summed up the apparent position of the justices well:
“When the Supreme Court heard oral argument this morning in Trinity Lutheran Church of Columbia v. Comer, a Missouri church’s challenge to its exclusion from a state program that provides grants to nonprofits to allow them to resurface their playgrounds with recycled tires, all eyes were on the court’s newest justice, Neil Gorsuch.
“After all, the conventional wisdom went, the other eight justices were likely deadlocked on the case and were expecting him to cast the tiebreaking vote, which is why they waited nearly 15 months after granting review before hearing oral argument.
“That may well have been true, but it was certainly not how it seemed to play out in the courtroom today. After roughly an hour of oral argument, the state seemed to have only two certain votes — those of Justices Ruth Bader Ginsburg and Sonia Sotomayor.”
We won’t know exactly how the justices will rule until the opinion is released, which is expected near the end of June.
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