- The Washington Times - Wednesday, April 19, 2017

Key Supreme Court justices signaled sympathy Wednesday with a church that was denied public funds to help update a playground, in a major discrimination dispute that’s become one of the highest-profile cases of the year.

Religious groups say the justices could strike a blow for churches across the country if they rule against Missouri’s law barring any funding from going to religious organizations, regardless of the purpose of the money.

In the case before the justices, Trinity Lutheran Church had applied for money from a state program that doles out money to help update children’s playgrounds. The state’s Department of Natural Resources, citing Missouri’s constitution, said it was barred from paying the money to a religious organization, even if the use weren’t religious in nature.

Justices, including two of the court’s more liberal wing, pestered Missouri’s lawyer, questioning just how far the state could go in refusing basic services to religious groups that it gives to everyone else.

“What’s the difference?” said Justice Stephen G. Breyer. “I’m asking, does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection, but not churches? We give everybody fire protection, but let the church burn down.”

James Layton, Missouri’s former solicitor general who defended the state in court Wednesday, said those were different cases, where the same protections applied to everyone. He said that’s not the situation with the playground money, where groups had to make safety changes to their playgrounds, then apply for reimbursement in a selective process.

“This is a very selective program; very few institutions get it,” Mr. Layton said. “It is a publicly visible manifest demonstration of state endorsement.”

Justice Elena Kagan countered that it still seemed like singling out religious groups for disparate treatment solely because of their religious beliefs.

“It’s a burden on constitutional rights, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit,” said Justice Kagan.

Nearly 40 states have prohibitions similar to Missouri’s ban on religious institutions applying for government money. David A. Cortman, a lawyer with Alliance Defending Freedom (ADF) who argued the case for Trinity Lutheran, said the bans grew out of anti-Catholic sentiment in the late 1800s.

Justice Sonia Sotomayor peppered Mr. Cortman with questions, saying that churches already get special treatment under tax laws.

“What are we going to end up with when secular people say religious people are being discriminated in favor of and against us? If status should not be an effect on free exercise, what are we going to do with tax benefits?” she said.

Mr. Cortman replied that it’s a balancing act.

Justice Neil M. Gorsuch, who took the late Justice Antonin Scalia’s seat and has only been on the court for a week, has a record of siding with religious practitioners during his time on the 10th U.S. Circuit Court of Appeals.

While he was active in previous arguments this week, he was more reserved in Wednesday’s case. He did prod Mr. Layton about how a state goes about deciding what’s a general program where discrimination isn’t allowed versus what’s a selective program where discrimination is allowed.

“We don’t get a fine line,” Mr. Layton admitted.

Religious groups rallied outside the courtroom Wednesday, saying the case will help decide how far states can go in targeting churches.

ADF spokeswoman Kerri Kupec said most of the children who attend Trinity Lutheran’s preschool don’t even go to church there, and the playground is also open to the community after hours and on weekends.

“So when the government discriminates against Trinity Lutheran and their kids, in this way, they’re actually hurting the entire community around it,” she said. “A skinned knee hurts just as much on the grounds of a religious preschool as it does at a public or secular institution.”

Missouri Republican Gov. Eric Greitens, who took office in January, reversed the state’s policy last week, saying the government shouldn’t be able to deny money to people of faith the funds if they’re making improvements to the community.

The American Civil Liberties Union (ACLU) said that made the case before the Supreme Court moot because the church will now get the relief it wanted.

But Trinity Lutheran told the justices its case is still live. The governor’s action was temporary, the church said, and there are already rumblings that the state Supreme Court would overturn the new policy and reimpose the ban — sending the issue straight back to the federal courts.

A decision is likely to come at the end of Supreme Court term in June.




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