Neil Gorsuch has assumed his duties as associate justice of the U.S. Supreme Court just in time to hear a significant case on religious liberty. At first glance, Trinity Lutheran v. Cromer is about a local church and its right to a tire scrap program, but a closer look suggests it could have larger, national implications.
In January 2013, the state of Missouri denied Trinity Lutheran Church access to a program that provides recycled tires for playgrounds, on the grounds that it would violate the separation of church and state. More specifically, the state argued it would violate the Blaine Amendment, which states that no state taxpayer money should be intended for religious entities.
Townhall sat down with the Judicial Crisis Network’s Carrie Severino Tuesday, who discussed the Blaine Amendment, stating that it was an attempt by Speaker of the House James G. Blaine in 1875 to prevent the direct and indirect aid to religious institutions. It failed in Congress, though various state legislatures passed versions of it. In all, 37 states have Blaine Amendments in their constitutions. The language is so overarching that Severino said that, in theory, emergency services couldn't even respond to 9-1-1 calls from these groups. Besides this playground issue, the amendment also impacts education as well, with school voucher programs being obstructed by opponents who cite this law—even though taxpayers aren't funding religious education. The voucher money goes to parents who then choose whether to send their kids to private, parochial, or charter schools.
The Missouri version of the Blaine Amendment is the one of the most stringent in the country, Severino explained. It's also pretty questionable - especially when you consider the groups that support it. It has the thumbs up, for instance, from The Freedom from Religion Foundation, the ACLU, and the Satanic Temple.
Left-leaning sites like Slate are also rooting against Trinity Lutheran. Dahlia Lithwick and Camille Mott are worried that the Supreme Court, with Judge Neil Gorsuch now on the bench, is going to rule in favor of the church, despite the case being similar to Locke v. Davey, according to them. Though that case explicitly involved questions about taxpayer-funded scholarship funds going to those seeking devotional theology degrees. That’s quite different than seeking an addition to a playground that’s used by everyone. Moreover, they stated that the state had prevented state aid going to churches dating back to 1820, which they say predates the rise of anti-Catholic sentiment, which formed the impetus for the Blaine Amendment that Missouri cited in rejected the church’s grant.
Well, for starters, anti-Catholic sentiment has been a hallmark characteristic since the founding; Puritans, who despised the Catholic Church, were some of America’s first colonists. Second, and most importantly, this isn’t aid to the church. It’s a playground.
"It's just recess," Severino said.
Severino said that she feels confident that the church has a good case, noting the anti-Catholic sentiment that spawned this amendment’s passage, along with its extreme language. She hopes the final outcome would be a clarification about the space where religious entities can or cannot be subsidized for something and not just a narrow ruling focusing on a single aspect in which this law was invoked (i.e. state grants related to playgrounds). She added that Justice Kennedy is expected to be the swing vote, and that the usual suspects on the Left are not really aggressive with this case.
With Gorsuch on the court, however, religious freedom advocates have reason to be hopeful.
Alliance Defending Freedom Senior Counsel David Cortman previewed his oral argument on behalf of Trinity Lutheran during a media call Tuesday. He said he is optimistic that the court will come down on the side of Trinity Lutheran because the situation “surpasses ideological divisions.”
The separation of church and state, Cortman mused, was not intended to treat religious entities “worse” than others. They just want to be treated the same.
There has been a bit of a hiccup on the state side of things. Missouri Attorney General Josh Hawley appointed James Layton, former Solicitor General of Missouri, to argue the state’s case in front of the Supreme Court in March. Hawley is against the amendment and recused himself from the case, while Gov. Eric Greitens announced a mere five days ago that Missouri could use public money for religious institutions.
The original case was Trinity Lutheran Church v. Pauley after the director of the Missouri Department of Natural Resources, Sara Parker Pauley. After the 2016 gubernatorial election, Carol S. Comer has taken over the department, hence the docket change.
The ruling is expected around June.