Religious Liberty Case Brings First Supreme Test for Gorsuch

The first test of new Supreme Court Justice Neil Gorsuch’s impact will come this week in a case that pits a Missouri church against a state constitutional amendment in a clash over religious liberty.

Trinity Lutheran Church of Columbia applied for a state grant to resurface the playground of its preschool and daycare with safer, recycled scrap-tire material. On the merits, it qualified for the grant. But the Missouri Department of Human Resources rejected it based on an amendment to the state constitution that prohibits state funds from “directly or indirectly” benefiting a religious institution. The church sued, alleging that it was a violation of the equal protections and free exercise clauses of the U.S. Constitution.

“The natural inference is that scheduling was delayed because the court felt that it needed a ninth justice to decide this case.”

Some 37 states have similar provisions in their constitutions, so the implications of the case could be far-reaching. After the trial and appeals courts sided with the state, the Supreme Court decided in January 2016 – shortly before Justice Antonin Scalia died — to hear the case.

But in an unusual move, the court delayed oral arguments, which will take place on Wednesday. The justices offered no explanation, but court observers speculate that it could be a sign that the justices expect they will be divided.

“The natural inference is that scheduling was delayed because the court felt that it needed a ninth justice to decide this case,” attorney Aaron Streett told reporters on a conference call set up on Friday by the Federalist Society.

That ninth justice would be Gorsuch, who succeeded Scalia after a contentious debate over his confirmation.

The state of Missouri, in its written arguments, maintains that it is not interfering with or discriminating against religion.

“Trinity Lutheran argues that the State’s policy infringes its First Amendment right to free exercise of religion, but nothing about the policy prohibits the church from fully and freely engaging in religious exercise,” the state argued. “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.”

Missouri Gov. Eric Greitens said last week he would support changing the policy that barred Trinity Lutheran from the grant. But Streett said that should have no impact on the current case.

The outcome could turn on a 2004 high-court decision in a case called Locke v. Davey, in which a 7-2 majority ruled that Washington State was within its rights to deny a scholarship to theology majors due to a state constitutional provision that is similar to the one Missouri has.

Then-Chief Justice William Rehnquist, who authored the opinion, wrote that the scholarship did not violate that First Amendment’s establishment clause prohibiting government from favoring one religion over another. Nor did Washington violate the constitutional guarantee of the right to “free exercise” of religion. Instead, there is a “play in the joints” between those two principles, Rehnquist wrote.

Streett, who wrote a friend-of-court brief in the Missouri case on behalf of four U.S. senators and 20 representatives but said he was speaking for himself on Friday, told reporters that he believes this case is different. He noted that concern over government funding of the training of the clergy dates back to the founding fathers. But he pointed out that the decision in the Washington case was narrow, holding that scholarship recipients could attend religious institutions and even take religious classes — just not major in theology.

“I suspect that the majority will find the Locke is distinguishable,” he said.

Streett added that Gorsuch seems likely to line up on the side of Scalia and Justice Clarence Thomas, who dissented from the Locke v. Davey decision in Washington, and with Justice Samuel Alito, who was not on the court in 2004.

“His record on the 10th Circuit [Court of Appeals] indicates that he likely shares a similar approach to free-exercise and establishment clause concerns with Justices Scalia and Justice Alito and Justice Thomas,” he said.

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But Streett added that Gorsuch is conscientious and takes precedent seriously.

“For anybody, this is not a slam-dunk case,” he said.

Carrie Severino, general counsel for the Judicial Crisis Network, said Trinity Lutheran should have just as much right to receive a grant to improve playground safety as a secular institution.

“This has nothing to do with religion,” she said. “This is about keeping kids safe.”

Severino, whose organization lobbied for Gorsuch’s confirmation, said Missouri’s amendment is part of the so-called “Blaine amendments” that swept the country in the lat 19th century. She said anti-Catholic bias motivated the measures.

Missouri’s amendment is particularly extreme, she said. But she added that she hopes the opinion affects other states, as well.

“I hope they write it in a way that doesn’t affect just a single case,” she said.

Justice Anthony Kennedy joined in the majority in the Washington case. Severino said it is difficult to know whether Gorsuch will prove to be the deciding vote.

“That’s hard to predict because religious freedom is something that’s been tarred on the Left,” she said. “It used to be a broad bipartisan consensus.”