Supreme Court faces twist in long- awaited church- state case
Mo. governor has reversed the policy at the center of dispute
The Supreme Court WASHINGTON has waited 15 months to take a swing at what may be the premier case of its lackluster term — but at the last moment, the church- state dispute over a Lutheran church’s playground may be slip- sliding away.
On the surface, the case is about just that: the pea gravel surface of the playground at Trinity Lutheran Child Learning Center in Columbia, Mo. The church wants to replace it.
Therein lies the rub. Its application for a state grant to install a rubber surface made from recycled tires was turned down in 2012 because the state constitution — similar to those in nearly 40 states — prohibits giving public funds to religious institutions.
“We were surprised we were singled out and rejected because we are religious,” Annette Kiehne, the center’s director, says. “I thought it was very sad that our kids were going to be denied a safer playground simply because their preschool is owned by a church.”
So the church sued, and while it has lost at every turn, the trend has been turning in its favor. A federal district judge ruled for the state. An appellate court panel issued a 2- 1 verdict. The full appeals court locked up, 5- 5. The Supreme Court agreed to hear the case. One of the justices who likely did so, Antonin Scalia, died, but his seat was held open 14 months — and the case put on hold— until fellow conservative Neil Gorsuch was confirmed this month.
The last favorable turn of events, however, could put the entire case on hold. The state’s new Republican governor, Eric Greitens, last week reversed the state policy and said churches will be eligible for such grants in the future. While Trinity’s denial still stands, the governor’s action may lead the justices to declare the case moot.
That would make it the second major case to be jettisoned this term. Last month, the high court sent a transgender student’s challenge to a Virginia school district’s restroom policy back to the federal appeals court after the Trump administration withdrew guidance issued under President Obama that instructed schools to let students use restrooms corresponding to their gender identity.
The conservative Alliance Defending Freedom, which is representing the church, urged the court to rule on its case. It reasoned that the new policy does not affect its denial and can be changed by a future administration.
“The state of Missouri denied the Trinity Lutheran Child Learning Center’s access to a public program that would have made their playground safer— and did so on the basis of religious status, a direct violation of the U.S. Constitution and Supreme Court precedent,” says senior counsel David Cortman, who is slated to argue the case Wednesday. The governor’s directive “doesn’t resolve the discriminatory actions that were taken.”
The state program is popular on several fronts. Non- profit organizations get money for playground repair that comes from fees on new tires. The old tires are recycled, helping the environment. But even though Trinity placed fifth among 44 applicants, the state passed it over because of its religious affiliation.
The church said the exclusion violates the First Amendment’s protection against policies prohibiting the free exercise of religion, as well as the 14th Amendment’s promise of equal protection for all.
“A rubber playground surface accomplishes the state’s purposes, whether it cushions the fall of the pious or the profane,” its court papers said. Although a 2003 Supreme Court precedent upheld Washington state’s refusal to give scholarship funds to theology majors, the church argued, “the surface that children play on as they enjoy recess is about as far as one can get from the devotional training of clergy.”