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Should states fund repairs at church schools?

April 19, 2017 at 6:35 PM EDT
After Missouri officials rejected the use of public funds to repair a church playground, Trinity Lutheran Church sued the state. The case now sits before the U.S. Supreme Court, and the proceedings offer a glimpse into the early behavior of Justice Neil Gorsuch. Marcia Coyle of The National Law Journal joins Jeffrey Brown.
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JUDY WOODRUFF: But first: Back here in Washington, the U.S. Supreme Court grappled once again with the relationship between church and state.

At the center of today’s legal fight, a school playground.

Jeffrey Brown has more.

JEFFREY BROWN: Can the state of Missouri give money to repair the playground of a church-run day care? And what have we learned in the first days of Justice Neil Gorsuch on the bench?

Marcia Coyle, chief Washington correspondent for The National Law Journal, was in the courtroom today.

Hello again, Marcia.

MARCIA COYLE, The National Law Journal: Hi, Jeff.

JEFFREY BROWN: Let’s get right to it. The case is Trinity Lutheran vs. Comer.

And it starts with a fairly ordinary setting, a playground.

MARCIA COYLE: A playground.

Trinity Lutheran Church in Missouri operates a day care center, and that day care center has a playground. It applied for a state grant in a program that funds the refurbishing of playgrounds by the use of recycled tires. Now, it complied with all …

JEFFREY BROWN: A good project, right, to help all kinds of …

MARCIA COYLE: It would seem so.

It fulfilled all the requirements for the grant, but it was denied a grant. And the explanation was that the state constitution prohibits the use of public funds to either directly or indirectly support religious institutions.

JEFFREY BROWN: I’m going to read the exact language from the Missouri state Constitution.

“No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion.”

MARCIA COYLE: Now, the church decided to challenge this denial, and it went to court claiming that the denial of its application was a violation of the First Amendment’s Free Exercise Clause, and also the Equal Protection Clause.

JEFFREY BROWN: OK, so we heard the arguments today.

MARCIA COYLE: We did.

And just — the church did lose in the lower courts, which is why the church brought it to the U.S. Supreme Court. Now, remember, the Free Exercise Clause doesn’t require government to subsidize religion. In fact, it requires government not to interfere with religion.

And during the arguments today, my general sense was that there was more sympathy than not for the church. I think probably the most skeptical justice of the church’s position was Justice Sotomayor. She said there’s a lot history in the states, of state laws not providing direct support to churches. The church won’t close its doors here if it doesn’t refurbish its playground. There’s no effect on religious beliefs.

JEFFREY BROWN: Even if it’s a secular purpose in this case, she still thinks there’s a case to be made for not giving it to the church.

MARCIA COYLE: That’s right.

The church’s lawyer said that there is actually coercion here, that the church is being penalized because of its status as a religious organization.

We also heard on the other side Justices Alito and Breyer, for example, gave a whole series of hypotheticals to the state’s attorney, saying, can the constitution require a state to deny police services or fire services to religious institutions?

And the state’s lawyer said, well, no. And Justice Breyer said, well, what’s the difference here with the playground where you’re trying to keep little children from falling and breaking their ankles?

JEFFREY BROWN: Even some of the more liberal justices were arguing — or seemed to be argue in favor of the church.

MARCIA COYLE: In favor, yes, exactly.

And the state’s argument comes back to this: Look, we don’t want to get entangled with churches. This is a neutral program. We don’t want to be selecting among churches. And we don’t want to be sending a check directly to a church for a physical improvement.

JEFFREY BROWN: Now, the reason people watch these things is not only because of a playground, but larger implications.

MARCIA COYLE: Absolutely.

JEFFREY BROWN: In this case particularly because there are bigger societal questions for about, for example, school voucher programs.

MARCIA COYLE: Yes.

In fact, a lot of the religious organizations that are supporting the church in this case really believe that this could say a lot about states that do now have obstacles to school vouchers. And it also may have an impact on a whole range of state-funded programs that do not accept applications or support religious organizations.

JEFFREY BROWN: OK. In our last minute, the first week of Justice Neil Gorsuch, you got to watch him. I happened to be there myself on Monday.

MARCIA COYLE: I know you were.

JEFFREY BROWN: What did you see?

MARCIA COYLE: Well, he’s very well-prepared. He was very active on a hot bench, although I think by late today he was getting a little tired. He wasn’t asking as many questions as he did that first day.

He injects a certain amount of humor, and he seems to have a testy side to him.

JEFFREY BROWN: A little bite.

MARCIA COYLE: Every now and then, yes.

JEFFREY BROWN: Yes. When he wants to, he can go back and forth quite sharply.

MARCIA COYLE: Yes, he can.

JEFFREY BROWN: Yes.

All right, we will be watching the future of Justice Neil Gorsuch and all things with you.

Marcia Coyle, thanks as always.

MARCIA COYLE: Thank you, Jeff.

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