This morning, the Supreme Court of the United States heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court is considering whether excluding churches from an otherwise neutral and secular aid program administered by a state agency violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution.

Trinity Lutheran applied for a grant to upgrade its playground through Missouri’s Scrap Tire Grant Program, which the Missouri Department of Natural Resources (Missouri DNR) oversees. Trinity Lutheran, which is affiliated with the Lutheran Church-Missouri Synod, operates a childcare center that uses its playground, teaches a “Christian world view” to enrolled children, and has a “policy to admit students of any sex, race, color, religion, nationality, and ethnicity.” Despite Trinity Lutheran’s strong ranking, its application was rejected by the Missouri DNR due to Missouri’s “Blaine Amendment,” which prohibits state funds from being allocated “directly or indirectly, in aid of any church, sect, or denomination of religion.” Missouri, along with 36 other states, has such a constitutional restriction.

Trinity Lutheran filed suit against the Missouri DNR claiming the “categorical exclusion of religion in this case is unvarnished status-based discrimination that violates the Free Exercise and Equal Protection Clauses.” The U.S. District Court for the Western District of Missouri dismissed the complaint, finding that the direct payment of state funds to a religious institution raised “antiestablishment concerns that are at least as comparable to those relied on by the Court” in Locke v. Davey, 540 U.S. 712 (2004). The U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal in a 2-1 decision. A motion for rehearing en banc was denied by a divided court, and SCOTUS granted review on January 15, 2016.

Numerous religious institutions have filed briefs on behalf of petitioner, arguing that it is unconstitutional to discriminate in a secular benefits program against an eligible entity solely because of the entity’s religious identity and claiming that a decision in the state’s favor could spell disaster for important social services offered by churches. A number of organizations have filed briefs on behalf of the respondent, arguing that the Establishment Clause prohibits the government from awarding direct grants of taxpayer funds to religious institutions and warning that a decision overturning the dismissal of the case would erode the wall between church and state.  According to a brief filed by the American Civil Liberties Union: “Because the record shows that Trinity Lutheran Church would likely engage in religious instruction, prayer, or other forms of religious activity on its taxpayer-improved playground, and because the Missouri Scrap Tire Program lacks adequate safeguards against this misuse of government aid, Petitioner’s proposed grant would run afoul of the Establishment Clause.”

The case has languished for more than fifteen months following the death of Justice Antonin Scalia.  Although other cases have been argued before a Court of eight, this case has been delayed, likely due to its controversial nature.  The addition of Justice Gorsuch, who is no stranger to high-profile religious liberty cases, has many court-watchers paying close attention.  In an unexpected twist, Missouri Governor Eric Greitens, who took office earlier this year, issued an about-face less than a week before oral arguments.  A statement from Governor Greitens explains: “We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day. We should be encouraging that work. So, today we are changing that prejudiced policy.”  Despite arguments that the case was now moot, counsel for both parties have set forth their belief that the case should proceed.  The Office of the Missouri Attorney General, however, recused itself from the matter, noting that Jim Layton, the former Missouri Solicitor General, will represent the DNR going forward.

David Cortman of Alliance Defending Freedom, the group that spearheaded the church’s legal efforts, argued on behalf of Trinity Lutheran.  Following arguments, Mr. Cortman and spokespersons on behalf of Trinity Lutheran were confident that a majority of justices were sympathetic to the church’s argument.  During oral arguments, Justices Kagan and Breyer suggested they would join their conservative colleagues in supporting Trinity Lutheran’s position.  Justice Kagan stated that the state prohibition is “a clear burden on a constitutional right.”  Justice Breyer suggested there is no difference between denying churches access to grant money for playgrounds and denying services such as police or fire protection.  Justice Sotomayor was most outspoken advocate on behalf of the state, noting that it would be difficult to separate secular and religious functions of religious institutions when distributing state funds.  Surprisingly, Justice Gorsuch said little during argument.

The Court’s decision will certainly impact state funding of religious organizations, including religiously affiliated schools, colleges, and universities, and may serve as a barometer for future disputes involving religious liberty.