The Supreme Court’s newest member, Justice Neil Gorsuch, participated in one the most significant religious freedom cases of this term when oral arguments were presented in a case involving whether or not state benefit programs could exclude churches. CNA/EWTN News is reporting on the case, Trinity Lutheran Church v. Comer, which challenges a Missouri law that prohibited a Lutheran preschool from receiving state funds to improve their playground.

The Lutheran Church Child Learning Center in Columbia, Missouri, applied for the Scrap Tire Surface Material Grant program through the state’s natural resources department with the hopes of receiving funds to make safety upgrades to their playground surfaces. Because Missouri's constitution prohibits taxpayer funding or preferential treatment of churches, the state ultimately denied Trinity Lutheran participation in the program because it is run by Trinity Lutheran Church of Columbia.

Groups like the American Civil Liberties Union say the amendment protects against the establishment of religion; however, the Eighth Circuit Court of Appeals ruled in favor of Trinity saying that the reimbursement for the upgrades would not be a violation of the Establishment Clause. The reason is because the money is being used for the playground, not for religious purposes.

The state’s natural resources department, represented by James Layton, argued that their concerns about the church’s eligibility for the program was about the playground resurfacing which would be a “visible physical improvement on church property.” He also pointed out that the church admits it “uses the preschool to bring the Gospel to non-members.”

David Cortman of the legal group Alliance Defending Freedom, who argued on behalf Trinity Lutheran, said that the state had conceded its denial of funding was “based on their religious character,” thus making it “discrimination against religion.”

When pressed about whether the playground would be used for religious purposes and if that effectively constituted state funding of religious ministry, Cortman explained that the church’s case was for a “safe surface” and just because the playground might be used for religious purposes doesn’t mean that it should ineligible for funds. If a church school receives public funding, that does not mean that it has to “just stop all religion in school,” he said.

As CNA’s Matt Hadro reports, the Justices seemed skeptical of the state’s case as they deliberated whether or not a playground owned by a church could be denied access to funds simply because of their religious status. They also debated the extent to which public services – which include firefighting and security services – can constitutionally be offered to religious organizations.

“As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things,” Justice Elena Kagan said during the hearing. “And I would have thought that that's a pretty strong principle in our constitutional law.”

Justice Alito asked the state’s counsel if a Jewish synagogue or a mosque, threatened by vandals, asked for a public security detail, would that be a violation of the state’s constitution. Layton said it would, according to a traditional reading of the constitution.

As Hadro reports, Justices Stephen Breyer and Kagan followed up by asking if emergency responses by fire or police departments, or public health programs, would be allowed under the state’s constitution. Layton admitted those services wouldn’t be denied.

Breyer than asked, “If it does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera? What's the difference?”

Layton countered that the safety reason, and other health reasons, would not meet exceptions for public benefits for churches.

Justice Ruth Bader Ginsburg brought up a 1947 decision which found that public funding for maintenance of churches or church property was unconstitutional. Cortman countered by saying that the same decision also said that churches should not be denied all public funding.

The newest member of the high court, Justice Neil Gorsuch, also weighed in by asking the state’s lawyer about government discrimination in “selective” and “general” public programs.

Gorsuch has shown deference to believers in past decisions, such as the 10th Circuit’s en banc opinion on the Hobby Lobby case in which he sided with the religious owners. He also joined a dissent in the Little Sisters of the Poor Case in which he asserted that the Department of Health and Human Services had infringed on the religious liberty of the Catholic groups involved in the case. In 2009, he also joined a dissent in a case involving a Ten Commandments display.

Cortman was optimistic after the hearing. “I think the theme that came out was what we emphasized in our briefs, and that is if the government is going to open up some sort of a neutral benefit program, then it can’t discriminate against religious organizations simply because of their religious status,” he insisted.

“The government should be religion-blind just like it’s race-blind,” he added. “When the government’s engaging in safety benefit programs, it should want all kids to be safe. It shouldn’t matter what their status is, it shouldn’t matter where they decide to attend school, and I think that’s a principle here that the state violated.”

A decision on the case is expected before the court’s current term ends in June.

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