Supreme Court Justices Show Sympathy for Missouri Church in State Aid Case

With Trump pick aboard, top US court tackles religious rights

Justice Elena Kagan, an Obama appointee, questioned the program, which was open to everyone, yet deprived the religious school "from being able to compete in the same way everybody else can compete due to their religious identification".

Trinity Lutheran Church, in Columbia, Missouri, reportedly applied for a state grant for the goal of resurfacing its playground that is accessible to children in the community, regardless of whether they attend the church or not. It's as strong as any constitutional principle that there is, that when we have a program of funding - and here we're funding playground surfaces - that everybody is entitled to that funding, to - to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. "You're depriving one set of actors from being able to compete in the same way everybody else can compete, due to their religious identification".

Later, Justice Sotomayor discussed with Cortman the issue of how, exactly, religious exercise is curtailed by losing access to playground resurfacing funds.

"This church-state divide, it's a fraught issue".

"It does seem as though this is a clear burden on a constitutional right", liberal Justice Elena Kagan said during a one-hour argument, referring to Missouri's prohibition.

A crowd, including handfuls of children, gathered outside the court and those favoring the church position held aloft balloons that spelled out "play fair".

WILLIAMS: The church sued, saying the state was discriminating against religion.

The dispute pits two provisions of the U.S. Constitution's First Amendment against each other: the guarantee of the free exercise of religion and the Establishment Clause, which requires the separation of church and state. "No one is asking the church to change its beliefs". The question: Can states refuse to give money to churches even when it's for something that doesn't involve worship?

Arguing on behalf of the church, lawyer David Cortman took the view that as long as the program being funded is not religious, if it's open to everyone else, religious schools can't be excluded. The National Conference of State Legislatures says that as of January, 17 states have scholarship tax-credit programs, with some of the states having more than one such program.

Layton admitted that wouldn't be denied, and Breyer then followed up, asking, "If it does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?".

Many of the Supreme Court justices' questions and remarks implicated a favor leaning towards the church, including those from the liberal-leaning justices.

Gorsuch said that the state's actions were "discrimination on the basis of status of religion".

"We know that's happened in this case, right?" he asked, leaving no doubt that he thought the answer was yes. He also pointed out later that "the line is moving".

"Missouri's governor now says the state will no longer automatically turn down requests for money from churches, " Williams seemed to complain, "Even so, the court appears headed for a decision reducing the wall between church and state". With the new twist, the Missouri attorney general's office recused itself and asked the former state solicitor general to defend the state's position.

"He said, 'What about a Department of Homeland Security program that would harden schools against terrorism?"

Missouri's Department of Natural Resources, which administers the playground resurfacing program, ranked Trinity Lutheran's grant application fifth out of the 44 it received. Missouri has said there is nothing unconstitutional about its grant program, noting that Trinity Lutheran remains free to practice any aspect of its faith however it wishes despite being denied state funds.

The Blaine Amendment forbade federal funds from going to churches or their schools, and was seen by many as a ban on taxpayer funding of Catholic schools, as the public school system at the time, in the 1870s, was largely Protestant.

University of Notre Dame Law professor Richard Garnett said separation of church and state "is supposed to advance religious freedom, by keeping the government from interfering in religious affairs; it is not supposed to be a warrant for crude discrimination". "This hostility was prevalent in 19th-century America, but there is no reason its influence should continue to block initiatives that serve the common good", he added.

A challenge to a 2015 court decision invalidating a Colorado voucher program is pending before the justices, awaiting the Trinity Lutheran case's outcome.

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