The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both of these religion clauses have been made applicable to the states via the Fourteenth Amendment. The continuing question is how they interact with one another — the play in the joints,” the Supreme Court has called it — in particular regarding when the government can treat religious institutions differently than secular ones, and when it must do so to avoid endorsing or entangling itself with religion.

Yesterday the Supreme Court heard oral argument in Trinity Lutheran Church v. Comer, which involves a Missouri program that provides subsidies to construct playground flooring out of recycled old tires. Trinity Lutheran Church runs a daycare center that had a playground open to the public, so it applied for a grant under the competitive program — and was denied solely because it’s a church. Missouri defended its position by citing a state constitutional provision that prohibits state funds from going to support religion. (For more on these Blaine Amendments, see this summary.) The U.S. Court of Appeals for the Eighth Circuit upheld the state denial, the Supreme Court agreed to hear the case, and Cato filed a brief supporting the church.

That’s when things got weird. The high court agreed to hear the case back in January 2016, but then Justice Antonin Scalia died. Even though briefing proceeded apace, the case wasn’t scheduled for argument before the end of the term in June. When the argument calendar was released for the new term that started in October, Trinity Lutheran was still not there. The conventional wisdom was that the justices must have thought that there would be a 4–4 deadlock. But then lo and behold in early February — days after Neil Gorsuch’s nomination — two other cases that had been granted at the same time as Trinity were scheduled for argument in March. A couple of weeks after that, when Gorsuch’s confirmation was by no means assured, the Court released its April calendar, which did include this religious-liberty case.

Was the Court simply confident that Gorsuch would take his seat in time, or did the chief justice think it unseemly to hold the case through another entire term? Either way, Gorsuch was indeed sworn in on April 10 — but that wasn’t the end of the drama. Late last week, the new governor of Missouri, Eric Greitens, changed the policy at issue, announcing that, going forward, religious organizations would be eligible for the scrap-tire subsidies, among other grants administered by the state’s department of natural resources.

The Court then asked the parties to submit letter-briefs about whether this latest development mooted the case or otherwise affected it. They both agreed that the argument should proceed, that the issue was a live one — in part because the governor’s policy decision could be reversed at any time and in part because lawsuits were expected over the reversal of course anyway. Curiously, the lawyer allowed by the state to argue for the old policy was the former solicitor general, who had been swept out of office along with the rest of the attorney general’s political appointees when Josh Hawley (a personal friend of mine, and a friend of Cato) was elected in November.

In any event, the argument proceeded apace and went very well for the church. Justice Anthony Kennedy opened the questioning by expressing concern for the use of religious status to deny government benefits. It was mostly downhill from there for the state, as Justice Samuel Alito launched into a devastating series of hypotheticals regarding Homeland Security funds for terrorism-prevention, grants to rebuild religious structures damaged in the Oklahoma City bombing, and other government transfers to pay for certain non-devotional expenses. Justice Stephen Breyer also got into that mix, questioning how provision of police, fire, and other public health protections okay but making playgrounds safe was not. Even Justice Elena Kagan, at first appearing skeptical of the church’s position, acknowledged her discomfort with the burden Missouri had placed on a constitutional right. Justice Gorsuch stayed quiet until the very end of argument, when he expressed bewilderment at how the Court was supposed to draw the line the state’s lawyer was suggesting between “general” or “universal” programs and “selective” ones like the scrap-tire grant here.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only ones suggesting opposition to the church’s free-exercise and equal-protection arguments, and they were also the only ones who seemed inclined to see problems of mootness or “adversariality” after the change in state policy. That’s surprising, because if indeed the case is headed to a 7–2 resolution, then it would’ve been 6–2 without Gorsuch and there was no need to hold it for so long. 

Anyhow, my basic position remains what it was when this saga began: Missouri isn’t required to have a scrap-tire grant program, but once it created one, it must open it to all without regard to religious status.

(For more case background and commentery, see the case’s SCOTUSblog page, read the argument transcript, and listen to my Federalist Society teleforum that will be posted soon.)