SCOTUS Hears Oral Arguments in Trinity Lutheran Church Free Exercise Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations. 

The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground.  The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry."  In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.   

Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion.  Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute."  Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke.  But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:

JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.

Soon thereafter, Justice Kagan stated:

JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and 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.

Layton, representing the State, also had his own status and the status of the litigation to discuss.

    [Sotomayor]:  Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.

JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.

The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue.  It dominated very little of the discussion, but Chief Justice Roberts did ask this:

CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .

Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.

Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.