WASHINGTON (CN) – In the biggest Establishment Clause case to hit the Supreme Court in decades, attorneys for Missouri struggled Wednesday to defend its withholding of a grant that would improve school safety.
In 2012, the Trinity Lutheran Church of Columbia had been one of 44 preschools that applied for reimbursement under the Missouri Scrap Tire Grant Program, which uses recycled tires for playground resurfacing.
Though the Missouri Department of Natural Resources ranked Trinity fifth, it determined that only a secular nonprofit could receive state funding and distributed grants to 14 other preschools.
At Wednesday’s oral argument, Justice Elena Kagan said the state’s interest would need to be “extremely high” to justify excluding the church.
“You’re depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification,” Kagan told Missouri’s attorney.
Trinity’s attoney led with that point in his remarks to the justices.
“This admitted discrimination against religion violates this court’s free exercise principles,” said David Cortman of Alliance Defending Freedom.
Trinity is pushing for a reversal after the Eighth Circuit affirmed dismissal of its case. The high court’s ruling is expected to shape future battles over school-voucher programs in the 40 states with policies that bar religious institutions from receiving state funds.
James Layton, an attorney for Missouri with the St. Louis firm Tueth Keeney Cooper Mohan Jackstadt, argued that the state would be scrutinized if made to choose between various religious applicants.
“We don’t want to be in a position where we are making a visible, physical improvement on church property,” Layton said.
The attorney later argued that the state was wary of even the suggestion of an Establishment Clause violation.
Trinity’s licensed day care and preschool program, the Learning Center, used to operate as an independent nonprofit before merging with the church in 1985. It now operates as a ministry.
Had it remained independent, Layton said, the state might have granted it the funds.
The Learning Center now has an open-admissions policy, and children in the surrounding community use the playground when the school is not in session.
An official for Home School Legal Defense Association spoke directly to that point after the arguments, voicing support for the church.
“We stand with Trinity Lutheran,” said Will Estrada, director of federal relations for the association. “Homeschoolers, by law in most states, cannot access public school playgrounds and campuses and many homeschoolers do not wish to.”
Noting that this situation leads most homeschooled children to use facilities at houses of worship, Estrada questioned why secular preschools should have better playground materials than religious institutions have.
“It’s inherently unfair,” Estrada added. “It’s actually a violation of our constitutional freedoms, our First Amendment rights.”
At the arguments, Justice Samuel Alito posed a hypothetical to Layton on whether the Missouri Constitution would similarly apply to security grants for nonprofits administered by the Department of Homeland Security.
Could synagogues and mosques at risk for terror attacks use those grants to install protective bollards, he asked.
“State money could not be used to actually erect or operate or provide that kind of physical addition to a church or synagogue,” Layton responded.
Advocacy groups that gathered in support of the church outside the Supreme Court found such reasoning problematic in the context of the church’s school playground.
“I’m appalled that this is even an issue for the court today,” said Janae Stracke with Concerned Women for America, who read a statement on behalf of Republican lawmaker Trent Franks of Arizona.
“It is so important for us now and always to resist the invidious efforts by the secular left to do away with the religious freedom in America, as they have successfully done in so many other parts of the world,” Stracke said.
Back in the courtroom, Justice Kagan had asked Layton why the state permits police and fire protection but not money to make playgrounds safer.
Layton said the difference is one of public safety.
Justice Stephen Breyer asked whether the U.S. Constitution would permit a state to deprive churches of police protection or let them burn down.
Layton declined to take a position that Breyer’s hypothetical state would permit such laws, but Breyer pressed on.”
“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,” the justice asked. “What’s the difference?”
Layton responded that establishment concerns underlying Missouri’s policy do not apply to police and fire protection.
Justice Neil Gorsuch remained quiet for most of the hearing but chimed in on that point, asking Layton to further explain the distinction.
“The line is moving,” Gorsuch said.
The high court is expected to issue a ruling in the case, Trinity Lutheran v. Comer, by the end of June.