Justices Sympathize With Church In Key Religion Case
The church had argued that the state's refusal to award it a grant blocked parishioners' free exercise of religion.
The justices seemed to settle on that point, questioning the state's decision to exclude the church from a grant program when there are federal programs in place that provide funding that could benefit religious institutions including a Department of Homeland Security program to improve security near synagogues or mosques and a program to fix buildings damaged by the bombing at the federal building in Oklahoma City. It sued the state after it was denied money from a state program to help non-profits cover their gravel playgrounds with a rubber surface made from recycled tires.
"Almost 200 years ago, the people of the state of Missouri, adopting language that finds its origin in the founding fathers in Virginia and elsewhere, decided that we were not going to tax people in order to give money to churches", Layton stated at a news conference after the hearing.
The amendments date back to the 19th century and are named for Rep. James Blaine of ME, who tried unsuccessfully in 1875 to have the U.S. Constitution prohibit the use of public funds for "sectarian" schools.
If Trinity Lutheran wins the day, it will be a signal to states that they may not discriminate against churches under the guise of Blaine Amendments.
Trinity says the rebuff violated its US constitutional rights to free exercise of religion and equal protection.
The case got a twist this month when Missouri Gov. Eric Greitens announced that he would end the policy against grants to religious institutions.
"Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray and practice any other aspect of its faith however it wishes", he argued.
"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.
"They're just saying", she said of the state, "we don't want to be involved with a church".
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Their concerns raised the possibility that the court would rule 7-2 in favor of the church, though perhaps on narrow grounds, so as not to set a broad, nationwide precedent on public funding for religious institutions. Should public money go for that, she asked.
In addition, the change in administrations led to the unusual situation that the new attorney general - Josh Hawley - recused himself from the case due to the fact that he previously supported the church's efforts before election. The government has effectively donated to the church an amount equal to the grant it has given them: a clear infringement on the religious freedom of members of every other church, which didn't receive a similar "donation".
Justice Sotomayor pressed Cortman to explain how the church's free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface.
But it's Greitens who is wrong in this case.
Had it remained independent, Layton said, the state might have granted it the funds.
At question is Article 1, Section 7 of our state Constitution.
"I just don't think it's discrimination", she says.
The money saved can then be used by the church for any goal - including proselytizing, printing worship materials, paying clergy, or getting unbelievable flower arrangements for Easter Sunday. And judging by questions asked by the justices, it appeared as though the majority might side with the church. "It's a hard issue", Justice Elena Kagan said.
Layton suggested one difference is that the playground program involves a direct payment to the church. Missouri's attorney responded by dividing government programs into two categories: "Selective programs", which choose their beneficiaries, and "universal programs", like fire protection, that are available to all.
After the arguments, Cortman was optimistic about the reception from the justices. "Discrimination on the basis of status of religion-we know that's happened in this case, right?" "The government isn't being neutral when it treats religious organizations worse than everyone else". Mr Breyer grew frustrated with Mr Layton's seeming inability to draw a line between legitimate expenditures of state funds on religious entities and spending that violates the Missouri constitution.
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