147-year-old Missouri provision gets a U.S. Supreme Court hearing

By Scott Lauck
BridgeTower Media Newswires
 
ST. LOUIS, MO — Court watchers have been waiting 15 months for the U.S. Supreme Court to hear a significant case from Missouri involving separation of church and state.

As far as the Missouri Constitution is concerned, the lead-up has been a little longer: since 1870.

Trinity Lutheran Church, which runs a preschool and daycare in Columbia, applied in 2012 for a state grant that partially reimburses nonprofit organizations that use recycled tire scraps to resurface their playgrounds. Although the church scored well on the application, the Missouri Department of Natural Resources told Trinity Lutheran it could not receive the grant because it was a church.

DNR’s decision was based on Article I, Section 7 of the Missouri Constitution, which says “no money shall ever be taken from the public treasury … in aid of any church, sect or denomination of religion.” However, the same provision also says “that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.”

That language dates to a constitutional amendment passed in 1870, which was incorporated into the state constitution approved by voters in 1875 and was readopted in Missouri’s current constitution in 1945. However, no Missouri state court has ever interpreted it, though some cases have addressed a related provision in Article IX, Section 8.

Instead, Trinity Lutheran has embarked on a long and so far unsuccessful fight in federal court to argue that its grant was blocked for no reason other than its status as a church, violating the Establishment, Free Exercise and Equal Protection clauses of the U.S. Constitution. In 2013, U.S. District Judge Nanette K. Laughrey dismissed the church’s suit, and in 2015 the 8th U.S. Circuit Court of Appeals affirmed her in a 2-1 ruling. The panel’s majority said Trinity Lutheran was seeking an “unprecedented ruling” — “that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church.”

But Judge Raymond W. Gruender’s dissent argued that “schoolchildren playing on a safer rubber surface made from environmentally-friendly recycled tires has nothing to do with religion.” The full 8th Circuit split evenly on whether to rehear the case, leaving the panel’s decision in place.

The U.S. Supreme Court agreed to take the case in January 2016, but it only recently scheduled the date for the argument — likely to allow the vacancy left by the February 2016 death of Justice Antonin Scalia to be filled. Justice Neil Gorsuch was confirmed April 7, and the Trinity Lutheran case is one of the first he will hear.

The case has drawn intense national interest. According to a brief filed by the Baptist Joint Committee for Religious Liberty, Missouri is one of 39 states with language in its constitution effectively prohibiting direct payments to churches.

In briefs, Trinity Lutheran argued that Article I, Section 7 has a “credible connection” to the so-called “Blaine Amendment,” proposed in 1875 by a Maine congressman, to prevent public funding of religious schools that is widely regarded as an anti-Catholic effort.

The state of Missouri argues that its constitutional provision predates the Blaine Amendment and doesn’t single out any particular religion. The state says it isn’t interfering in any way with Trinity Lutheran’s religious activities by not funding the resurfacing of its playground, and that doing so would raise questions about what other ways public money could be given to religious groups.

“We have a bright line at the moment,” said Jim Layton, the attorney who will argue Missouri’s case. “If the U.S. Supreme Court erases that line on U.S. Constitutional grounds, then the question will become, what is the line? I don’t know that this case even could answer that.”

Layton, of Tueth Keeney Cooper Mohan Jackstadt in St. Louis, retired as the solicitor general of Missouri earlier this year. Attorney General Josh Hawley, who took office in January, appointed Layton to argue the case after recusing himself due to his previous private practice work. The case will mark the fourth Layton has argued before the U.S. Supreme Court.

Daniel Mach, director of the national American Civil Liberties Union’s Program on Freedom of Religion and Belief, said that most states prohibit direct cash grants to religious organizations for a reason.

“Missouri, like three-quarters of the states, has drawn that bright line to promote religious liberty, not threaten it,” he said.

But attorneys for Trinity Lutheran say it’s a clear-cut case of discrimination. Missouri’s current administration agrees: On Thursday, Gov. Eric Greitens announced that he’d reversed the “prejudiced policy” and ordered the Department of Natural Resources to allow religious organizations to apply for and be eligible to receive grants. Greitens said his order is not expected to affect the case before the Supreme Court, as DNR’s denial of Trinity Lutheran occurred years ago. (The outcome of the Supreme Court case, however, might affect the lawfulness of Greitens’ order.)

Of the 44 organizations that applied for the scrap tire grant in 2012 (14 of which received grants), Trinity Lutheran’s application ranked fifth. It was only after state officials realized the daycare was part of a religious organization that the grant was rescinded.

“My first reaction was, what was your first tip that we were a church? The word ‘Trinity,’ the word ‘Lutheran’ or the word ‘Church’?” said Michael Whitehead of the Whitehead Law Firm in Kansas City. Whitehead, along with his son Jonathan Whitehead, served as local council for the national organization Alliance Defending Freedom, which is representing Trinity Lutheran.

Whitehead said a ruling in the church’s favor wouldn’t allow public money to flow to churches under all circumstances. It would just mean that such grants would have to be determined on a case-by-case basis.

“The bright line will be, is the nature of the public benefit being provided in any way connected to advancing the religious character of the recipient?” he said. “And providing scrap tires doesn’t advance the religious character of the recipient.”

Thor Hearne of Arent Fox in St. Louis, who authored an amicus brief for the National Association of Evangelicals in support of Trinity Lutheran’s position, said the court may have taken the case because it has “an easy answer,” given its facts.
“We all agree these rubber pellets on a playground have no sectarian benefit to the Lutheran religious tenants,” he said. “How is this different from if the church catches on fire, the fire department comes and puts it out?” (The state argues that the daycare functions as a “ministry of the church,” and that public services available to everyone are different from direct grants that are doled out on a competitive basis.)

Hearne’s brief also argues that, because no Missouri court has ever interpreted Article I, Section 7, perhaps the federal courts should abstain from the case. After all, the provision forbids aid to churches on one hand and prohibits discrimination on the other, and the Missouri Supreme Court possibly could resolve that tension it in a way that avoids the constitutional claims.

In an interview, Hearne said that outcome — first broached in the 8th Circuit and repeated when the Supreme Court was still potentially deadlocked — isn’t likely now, though it possibly could be the basis of a dissent.

Hearne, Mach, Whitehead and dozens of other lawyers will be attending Wednesday’s case. It won’t be Whitehead’s first Missouri-based religious liberty case in the U.S. Supreme Court. In 1981 he helped argue Widmar v. Vincent, in which the court held that the University of Missouri-Kansas City couldn’t bar a student religious group from using a campus building for meetings. Whitehead noted that Widmar was one of the first cases heard by Justice Sandra Day O’Connor, who ultimately voted with the 8-1 majority. He’d like to see a similar result now that Gorsuch is on the court.

“I’d take a 5-4,” he said. “I’d really like a 9-0.”

The case is Trinity Lutheran Church of Columbia Inc. v. Comer, 15-577.