The Supreme Court waited to seat Justice Neil Gorsuch and thus have a full complement of nine justices on the bench in order to hear arguments in  Trinity Lutheran Church of Columbia v. Comer. Trinity Lutheran Church is arguing that the State of Missouri violated the U.S. Constitution when it bar the church’s daycare and preschool from receiving taxpayer funds for resurfacing playgrounds operated by nonprofits. The Constitution of the State of Missouri disallows the disbursement of public fund to assist any church, sect, or religion directly or indirectly.
 
A majority on the Supreme Court, bringing together both right and left, appeared to offer support on Wednesday for the church which had been denied public funding to improve its playground’s surface by replacing gravel with recycled, synthetic rubber. As one of the most closely watched cases, it involves the contentious issues of religious freedom and taxpayer funding. 
 
The unexpected later action by Gov. Eric Greitens, a Republican, to change the policy and thus allow religious institutions to participate in the program only served to raise questions about whether the case is now a moot point. However, the justices on the court battled anyway. 
 
Initiating the session of questioning, Justice Anthony Kennedy asked Attorney David Cortman, who is representing Trinity Lutheran Church, if there are "instances when religious status can be used to deny benefits" from the government.
 
Left-leaning Justice Ruth Bader Ginsburg interrupted before Cortman could answer, while Justice Sonia Sotomayor, the “wise Latina,” also interjected. "I believe the playground is part of the ministry" of the church, Sotomayor said. "I'm not sure it's a 'free exercise' [of religion] question," said Sotomayor. "No one is asking the church to change its beliefs. The state is just saying it doesn't want to be involved in giving [public] money to the church."
 
Sotomayor was concerned that the church’s preschool might provide religious instruction to the children "outside on a sunny day" on the playground resurfaced with public funds. She also claimed that nearly 40 states’ constitutions have provisions similar to those in Missouri’s, which she praised as being in the tradition of prohibiting public funding of religious institutions. "You say this affects free exercise [of religion], you seem to be confusing money with free exercise," Sotomayor said to  Cortman. "I'm not sure how this is a free exercise question."
 
Interjecting, Justice Samuel Alito called out Sotomayor by name when he asked Cortman if he agreed with Sotomayor that Missouri Constitution's prohibition of direct or indirect funding to churches is an "admirable tradition." Cortman replied, saying that the prohibition was rooted in "anti-Catholic bigotry."
 
Triggered, Sotomayor responded to the allegations of anti-Catholic bigotry, saying "There's a serious debate about that." Even so, the other leftists on the Court did not rise to her defense. Material previewing the case, provided by the Supreme Court, claims that the provisions in Missouri’s Constitution and elsewhere "were born out of anti-Catholic animosity in the 19th century."
 
James Layton, who represented Carol Comer, head of Missouri's Department of Natural Resources, came to Sotomayor’s defense. "Justice Alito asked whether this is an admirable tradition ... and the state's answer is yes," Layton began. Justice Alito proceeded to question Layton and offered hypothetical examples from friend of the court briefs to see where Layton believes who may receive public funding. For example, Alito asked whether Missouri would approve of Department of Homeland Security grants to synagogues or mosques threatened with terrorism to have security similar to that found at the Supreme Court. Layton said "no."
 
Justices Elena Kagan and Stephen Breyer then asked Layton asked how police and fire department services are provided to protect churches and synagogues. "You're denying one set of actors from competing [for the grant money] because of religion," Kagan said, calling it a "clear burden on a constitutional right."
 
The First Amendment of the U.S. Constitution offers two provisions to protect religious belief. The Establishment Clause prohibits the government from preferring or promoting religion over non-religion, and vice versa. The Free Exercise Clause protects  the right to practice religion, absent a "compelling" government interest.
 
Sotomayor then questioned whether newly elected Missouri Attorney General Josh Hawley (R) was effectively "manufacturing adversity" by allowing the case to proceed. Layton said that it is likely the court would see the controversy again, regardless of the newly elected officials' action.
 
Justices Neil Gorsuch and Clarence Thomas remained silent during the questioning until the end. Gorsuch asked the last question, pursuing the line brought up by Kagan why Missouri's discrimination against Trinity Lutheran Church in a selective government public-benefit program was "better" than discrimination in a general public-benefit program.
 
The Supreme Court has not ever fully answered whether "free exercise of religion" guaranteed in the U.S. Constitution compels the states to provide taxpayer funds to religious institutions, even through neutral means that do not promote faith-based beliefs or practices. Teachers unions are concerned that ruling in favor of Trinity Lutheran would fuel the current momentum for private school voucher programs, which is part of the school-choice movement which the Trump administration has promoted and personified in Secretary of Education Betsy DeVos. 
 
Besides the Trinity case, the high court may accept two other disputes over religious liberty. They involve a Colorado baker and a Washington state florist and whether they can be compelled to do business with same-sex couples, which they say would violate their "sincerely held" religious beliefs. 
 
A ruling on Trinity Lutheran Church of Columbia, Inc. v. Comer (15-577) is expected in June.


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Martin Barillas is a former US diplomat and the editor of Spero News.

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