The Supreme Court, with its conservative majority restored, will hear a major religion case on Wednesday and decide whether states must give church schools an equal right to receive certain kinds of public funds.
The constitutions in at least 37 states forbid sending any tax money to churches, church schools or religious organizations. But those long-standing bans are being challenged in the high court by religious rights advocates who say the funding limits amount to religious discrimination.
In the past, a more liberal Supreme Court said the 1st Amendment’s ban on an “establishment of religion” meant the government could not subsidize church schools.
Now the more conservative court is being urged to rule that excluding church schools from state funding programs that are open to others violates the 1st Amendment’s guarantee of the “free exercise” of religion and denies them the equal protection of the laws.
The case of Trinity Lutheran Church vs. Comer could lead to a major shift in the law on churches and public funding if the justices were to issue a broad ruling.
But the legal battle also could be defused by a late political intervention. Missouri Gov. Eric Greitens announced last week the state was “reversing policies that previously discriminated against religious organizations.”
The American Civil Liberties Union and Americans United for Separation of Church and State cited the new state policy and urged the court to dismiss the case as moot. But the Arizona-based Alliance Defending Freedom, which represents the church, said the justices should decide the issue. The state’s shifting stance is not permanent and could be reversed, its lawyers argued.
The case before the court began in 2012 when Missouri officials refused to allow Trinity Lutheran Church in Columbia to participate in a state program that distributes old tires to be used to rubberize school playgrounds. State officials pointed to Missouri’s 1945 constitution, which says “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
The church sued, contending this amounted to unconstitutional discrimination. A federal judge and the U.S. 8th Circuit Court of Appeals rejected its claim. “Missouri has a long history of maintaining a very high wall between church and state,” the appeals court said.
California and nearly all the states in the West have similarly strict provisions in their constitutions.
The church appealed to the Supreme Court and argued that the funding bans reflected official hostility to religion. The justices voted to hear the case in January of last year, shortly before Justice Antonin Scalia died.
In an unusual move, the court did not schedule the case for a hearing for more than a year. Early this year, it was put on the last argument session of this term. It was just in time for the arrival of new Justice Neil M. Gorsuch.