A critical church-state separation case in the making

By the Church Executive editorial & leadership team

Last year, Church Executive published an interview with David Middlebrook on the Trinity Lutheran Church v. Pauley case, which the Supreme Court had just agreed to review. (“A Supreme Court case to watch: Trinity Lutheran Church vs. Pauley,” March 18, 2016)

As Middlebrook explained at the time, this case had the potential to be hugely important in defining what can (and can’t) be done under the First Amendment with a government grant or subsidy program in which churches and religious institutions would like to participate.

In a nutshell, Trinity Lutheran Church qualified in all respects for a Missouri state grant program to resurface its playground, but was denied the grant solely because it was a church — the Missouri state constitution says a church is not allowed to receive taxpayer dollars for any purpose.

The federal court of appeals held that Missouri does not violate the First Amendment when it refuses to allow a church to participate in a grant program like this, even when the record is clear that the church would have qualified, except for its identity as a church.

The Supreme Court agreed to hear the case more than a year ago, and all of us have been waiting with bated breath for the case to be set for oral argument. It has been briefed and sitting off-docket for ages — apparently, the Court has been waiting for a 9th Justice to fill out its ranks and perhaps avoid a 4-4 split.

Right after Justice Neil Gorsuch was confirmed and took his seat as the ninth Justice — and could participate in deciding the case (historically, a Justice won’t participate in the decision of a case without sitting for the oral argument) — the case was set for oral argument; it was heard on Wednesday, April 19, 2017.

In a generally lackluster October Term, this case might well turn out to be a highlight, especially if — as some have said is likely — the new Justice is the deciding vote to break a 4-4 tie on the Court.

The Middlebrook piece was prescient and pointed out that the case is potentially of huge importance to Church Executive readers if the Court’s post-Scalia majority takes a clear stand for (or against) the point that the First Amendment doesn’t allow state governmental action which is hostile toward churches. As explained, state action must be neutral toward religion and religious institutions; it can’t be supportive or contra-supportive. This is the provocative interplay, or pivot point, between the Establishment Clause prohibiting any “establishment” (or support) of religious activity and the Free Exercise Clause prohibiting any “interference with” (or hostility toward) the exercise of religious beliefs.

The political backdrop inside the Beltway adds considerable spice to the point, along with the coincidence that Justice Gorsuch was a law clerk for another potential swing vote: Justice Anthony Kennedy.

Watch this space

We wanted to follow up on this case with Church Executive readers because of its potential importance for churches, church schools and other religious institutions, and we will likely do so after the Court’s decision. Further detail on the case and its background and issues is available on SCOTUSblog, starting with an excellent case summary by Amy Howe.

To further complicate things — and perhaps even render the entire matter “moot,” meaning the Supreme Court would decline to decide the case “on its merits” — the newly elected governor of Missouri issued a press release in early April. Essentially, it stated that churches in Missouri would no longer be barred from participating in state grant programs like this. At the 11th hour, the Supreme Court asked the parties to the case to weigh in on whether or not the press release had made the case moot.

The parties all told the Court that the case should proceed, and perhaps the Court will agree — a portion of the oral argument in April was taken up by questions from the Justices about whether or not the case has become moot. It could be that the Court will ultimately decide as much and not render a decision on the merits. To this end, Amy Howe has further insightful commentary to share, including her thoughts on this new procedural wrinkle.

It’s always risky to predict how the Supreme Court will come out on a given case, or to think that questions and comments from the Justices during oral argument accurately tip their hands. The best bet is for all of us to stay tuned.

If the Court decides to punt on procedural grounds because the case has become moot, we might learn that soon.

If it decides to rule on the merits, we might have to wait until late June to learn their decision to see how the Court split, and also to see if a majority of the Court has the stomach to draw a bright line on this important First Amendment issue.

As churches do more and more to help their communities and fill the vacuum left by shrinking budgets for government social services, the case for requiring government grant and subsidy programs to be non-hostile toward churches seems unusually compelling — and perhaps the Court will come right out and say so.


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