Playground Case Could Breach Barrier Between Tax Coffers, Religious Schools

The Massachusetts’ version, for example, states that “no grant, appropriation or use of public money shall be made or authorized for the objective of founding, maintaining or aiding any church, . religious denomination or society” As a result these provisions have been applied to matters from playground surfaces in the Missouri case to a pending case before the highest Court in Massachusetts involving the town of Acton giving a grant of public funds to refurbish stain glass windows and for other repairs to a Congressional Church.

The Missouri Attorney General’s Office and a Columbia church say that a U.S. Supreme Court case over who qualifies for state grant money should move forward. “The U.S. Supreme Court has never upheld direct government grants to churches, much less required a state to provide such funding”, Holly Hollman, the Baptist group’s general counsel, said to reporters after listening to the arguments in the court.

The justices posed a stream of hypothetical questions to both sides that were aimed at finding the right line between the improper mixing of government and religion on the one hand and discrimination against religious institution on the other. He will be on the bench on Wednesday when the justices hear the Trinity Lutheran case, one of the most important of their current term. It will also be the biggest test for the court’s newest justice, Neil Gorsuch, who was appointed by President Donald Trump.

Trinity Lutheran sued, noting its grant request was for a non-religious objective.

“If the church wins in Trinity Lutheran, Douglas County [the Colorado case] will probably be vacated and remanded to the Supreme Court of Colorado”, writes Douglas Laycock, a professor at the University of Virginia Law School, in an email to the Monitor. For example, Colorado’s top court in 2015 found that a Douglas County voucher program violated a state constitutional provision similar to Missouri’s.

But the Arizona-based Alliance Defending Freedom, which represents the church, said the justices should decide the issue.

The Constitution’s First Amendment speaks on religion in the public sphere with two important provisions. Then Scalia died the following month, prompting the court to delay hearing the case until now. In 2013, the full Tenth Circuit considered the claim of the Hobby Lobby corporation, which sought an exemption from the requirement, established by the Affordable Care Act, that employers pay for insurance that covered birth control.

Even if, as Missouri implausibly insists, its constitution’s language, which was enacted in – wait for it – 1875, was unrelated to anti-Catholic animus, the language is nevertheless incompatible with the Supreme Court’s Establishment Clause jurisprudence. She called it a “clear burden on a constitutional right”. Trinity Lutheran, for instance, contends that another governor sometime in the future could change the policy back. It offers an overview of the underlying laws and legal issues. Dahlia Lithwick and Camille Mott are anxious that the Supreme Court, with Judge Neil Gorsuch now on the bench, is going to rule in favor of the church, despite the case being similar to Locke v. Davey, according to them.

But whether the court will issue an expansive ruling on church-state issues or a narrow one exclusively aimed at the grant program is uncertain. He stressed that nothing about the policy prohibits the church from engaging in religious exercise. The ACLU’s Mach argues that now these religious schools are trying to “have their cake and eat it too”. He said he is optimistic that the court will come down on the side of Trinity Lutheran because the situation “surpasses ideological divisions”.

Missouri has announced that it will start allowing religious groups to be eligible for certain state grants, although the decision may not affect a religious-freedom case before the U.S. Supreme Court this week.

A decision is expected by late June. We can be fairly confident, though, that they will have plenty of questions tomorrow, about both the constitutionality of the old policy and the governor’s decision to implement a new one.