The Supreme Court grappled Wednesday with whether states can legally exclude religious organizations when doling out grant funding for state programs.
The Trinity Lutheran Church, which brought the case, was not allowed to receive funding in Missouri under a program that reimburses nonprofits for resurfacing their playgrounds with rubber from recycled tires.
Justice Elena Kagan questioned whether Trinity Lutheran Church could also be denied police and fire services if the state followed the Missouri Department of Natural Resource’s reasoning for excluding the church from the playground program.
Though Trinity operates a preschool and day care center on its property, the Missouri Department of Natural Resources said the state constitution bars it from using public funds to support a church.
“We don’t want to be in a position where we are making a physical improvement on church property,” said James Layton, the attorney representing the state’s natural resources department.
But Justice Stephen Breyer pressed Layton to explain why the state can take money from its treasury to pay for police and fire services that benefit members of a church, but not to protect kinds from scrapping their knees or breaking a leg.
“What’s the difference?” he asked.
Layton argued that those benefits are universal, not selective.
“In those instances, the state is not endorsing a particular church by choosing to provide that church with those benefits and not another church,” he said.
But the court’s newest member, Neil Gorsuch wanted to know how to draw the line between when it’s OK to discriminate for selective benefits and general benefits.
"One could seem to play with that line forever," Gorsuch said.
Layton admitted there’s no firm line.
“Well, discrimination on the basis of status of religion, there's no line-drawing problem there,” Gorsuch said. “We know that's happened in this case, right?”
Chief Justice John Roberts, meanwhile, wanted to know if a state program that gives school groups tours of the state capitol could discriminate against religious schools.
Layton said the tours don’t require the state to be entangled with the church. As part of the playground grant program, he said, nonprofits get points for telling people in the community that the state paid for this improvement.
Justice Anthony Kennedy, who is often the swing vote in cases, drew laughs from the crowded courtroom when he said a church could easily say it’s delighted it has fire protection.
But the justices didn’t appear wholly convinced during the lively hour-long argument that Missouri had violated the free exercise and equal protection clauses of the Constitution, as the church claimed.
Funding or no funding, Justice Sonia Sotomayor noted that the church could still operate as a church,
"This church is not going to close its religious practices or its doors because its playground doesn't have these tires," she told Trinity’s attorney David Cortman. "So I'm not sure how this is a free-exercise question, because there is no effect on the religious beliefs.
She later asked why the case is not already moot.
Last week Missouri Gov. Eric Greitens announced he was reversing the DNR’s policy and allowing religious organizations to apply and be eligible for grant funds.
“Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids. … That’s just wrong,” he said in a statement.
“We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day.”
But the governor’s office said the policy reversal did not impact the Trinity Lutheran case “because that case involves a 2012 DNR decision that became final years before the Greitens administration took office.”
Cortman argued, the new policy could be overturned.
“So what's interesting here is there's already talk that the new policy is immediately going to be go challenged, and likely struck down by the Missouri Supreme Court,” he said. “So absent a ruling here, the old policy will be back in place.”
- This story was updated at 1:57 p.m.