Supreme Court Justice Neil Gorsuch May Be the Deciding Vote in a Major Church/State Separation Case

With the confirmation of Neil Gorsuch to the Supreme Court — setting aside talk of how Republicans stole the seat — one of the first cases he’ll decide will be about church/state separation.

As the New York Times noted in an article about his confirmation,

On his third day on the bench, Justice Gorsuch will hear what may be the most important case of the term, a church-state clash with accessible facts and vast implications. On the Federal Court of Appeals in Denver, Judge Gorsuch was receptive to claims based on religious freedom, and he may make an early mark at the Supreme Court in that same area.

There is good reason to think he may cast the decisive vote in the case, Trinity Lutheran Church v. Comer, No. 15-577. The court has signaled that it feared a deadlock, taking an extraordinarily long time to schedule arguments.

The justices agreed to hear the case in January 2016, when Justice Scalia was still alive. Indeed, he may have cast the fourth vote required to place the case on the court’s docket.

What’s that case about?

It involves the Trinity Church of Columbia in Missouri. The church runs a Christian preschool and wanted to renovate the playground. As it turns out, the Missouri Department of Natural Resources had a special program offering money for just that reason. So the church applied for a grant in 2012.

There were 44 applicants that year, but the state only had cash to fund 14 of them and the church didn’t make the cut… even though reports later came out that they ranked 5th out of the 44 applicants.

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Program Director Sara Parker Pauley told church officials that the reason they were denied was that the state wasn’t allowed to give money to churches:

… after further review of applicable constitutional limitations, the department is unable to provide this financial assistance directly to the church as contemplated by the grant application. Please note that Article I, Section 7 of the Missouri Constitution specifically provides that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.”

To no one’s surprise, the church felt this was an injustice and filed a lawsuit against the state. They said it was wrong for the state to deny its application just because they were religious. There were some other technical problems with their case, but the end result was that the lawsuit failed.

So the church filed an appeal… and that, too, was decided in favor of the state in May of 2015. Of course the state didn’t have to fund a church playground, the court said, just as the state wasn’t on the hook to fund the training of pastors. (More technically, the church lost its appeal on a 2-1 vote. And when they asked the entire Eighth Circuit to consider reviewing the case, the judges were split, 5-5, so the earlier decision stood.)

At the time, Americans United for Separation of Church and State was thrilled:

“The court made the correct decision,” said Alex J. Luchenitser, Americans United’s associate legal director. “Churches aren’t entitled to tap the public purse to pay for their projects.”

Added AU Legal Director Ayesha N. Khan, “Missouri’s Constitution does not discriminate against churches. It merely ensures that state government doesn’t spend taxpayer money on religion.”

But the church leaders and their lawyers argued that there was no compelling reason for the state to exclude churches from applying for an otherwise neutral program. This was a playground, after all, not a pastor training program.

Trinity does not seek funding for an essentially religious endeavor where the state’s anti-establishment concerns may be heightened,” the church said in its petition to the court.

“Trinity seeks a grant for a rubber pour-in-place playground surface where its children and those from the community play. Seeking to protect children from harm while they play tag and go down the slide is about as far from an ‘essentially religious endeavor’ as one can get.

(It’s an interesting argument to make since it’s the same reasoning conservatives use against Planned Parenthood receiving federal money. The group says it only receives reimbursements for non-abortion procedures, but conservatives say that frees up money for abortions, therefore no taxpayer money should be given to Planned Parenthood at all. In this case, if taxpayer money helps renovate a church playground, that means there’s more church money available to train pastors.)

In any case, they asked the Supreme Court to consider reviewing their case, which is always a long shot… but it worked. The Court agreed to hear it in early 2016. It was one of the last decisions Justice Antonin Scalia made and there was reason to believe he voted to hear the case specifically because he thought the church would win with a 5-4 vote. With his death and the nomination of Merrick Garland to replace him, that plan appeared to backfire… until Republicans decided they didn’t need to consider Supreme Court justices nominated by Democrats. With Gorsuch on the Court, this case may be heading back to that original 5-4 prediction in favor of the church.

Consider this: If the church wins this case, the ruling would essentially say that secular aspects of religious institutions can be funded with public money. So if Liberty University wanted to build a new gym on campus (which would, at least on paper, be open to the public), taxpayers could theoretically pay for it.

It would also open the door to a flood of other questions: If a church playground is deemed secular, then what about its other buildings that host more than just church services? What about lakes on the property that are used for baptisms but are said to be for the community. What’s the line between church space that’s used for religion and space that’s for “everyone” and therefore eligible for government-sponsored upgrades?

Keep in mind that Trinity’s preschool playground is still on their property. The kids who use it could still be subject to proselytizing in other less direct ways. Why should the government give money to beautify a church, making it easier for the church to draw in new members? That’s an endorsement of religion, even if taxpayers aren’t funding religious programs.

If churches want access to taxpayer money, then churches should pay taxes. It’s that simple. They shouldn’t be allowed to have it both ways.

That’s what Americans United argued:

“Religious institutions have no right to demand aid and support from the taxpayers,” said the Rev. Barry W. Lynn, executive director of Americans United. “Houses of worship must rely on support given voluntarily by their members.”

Last year, AU filed an amicus brief defending the state’s decision to say no to the church. It was a more formal way of stating their case to the Supreme Court.

The American Humanist Association, ACLU, Center For Inquiry, Freedom From Religion Foundation, and People for the American Way also signed on to an amicus brief:

“When Missouri taxpayers are expected to foot the bill for religious organizations, it violates their freedom of conscience, one of our nation’s most cherished liberties,” said Roy Speckhardt, executive director of the American Humanist Association. “Giving preferential treatment to religion by providing public funds is wrong.”

David Niose, legal director of the American Humanist Association, said, “The Constitution requires a strict separation of church and state, so Missouri must exclude religious organizations from its grant programs to uphold the Establishment Clause. State support of churches with public money creates a dangerous intermingling of religion and government that our First Amendment was created to guard against.

Oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer will take place on April 19. And Neil Gorsuch could be the deciding factor.

(Image via Shutterstock. Large portions of this article were published earlier)

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