POLITICS
04/18/2017 09:17 pm ET | Updated Apr 19, 2017

Neil Gorsuch Could Cast Decisive Vote In Biggest Church-State Case In A Long Time

All eyes are on the Supreme Court’s newest justice, who in the past has been friendly to religious claims.

On his first day on the Supreme Court bench, Justice Neil Gorsuch seemed eager to make a good impression with his colleagues and the public, even if the cases themselves weren’t exactly headline-grabbing.

All eyes will once again be on the court’s newest member Wednesday, as he and his colleagues wrap their brains around what’s arguably the most explosive church-state case the justices have heard in decades. And where Gorsuch could, conceivably, cast the tie-breaking vote.

The case’s timing underscores Gorsuch’s importance in the matter: Trinity Lutheran Church v. Comer, as this Missouri case is known, has been lying dormant on the court’s docket since before the death of Justice Antonin Scalia. 

In January 2016, less than a month before Scalia’s passing, the Supreme Court agreed to consider the dispute — a constitutional challenge to Missouri’s decision to deny funding to a church that had applied for a state grant to resurface its school’s playground with tire scraps. In response, Trinity Lutheran sued the state in federal court, claiming that its Department of Natural Resources discriminated against and violated the church’s right to freely exercise its religion under the U.S. Constitution.

“Excluding Trinity Lutheran from the Scrap Tire Program here exhibits an undeniable hostility to religion that offends the Constitution’s essential mandate of religious neutrality,” lawyers for the church charged in a brief filed last April.

That was a year ago. But once President Donald Trump nominated Gorsuch in January, the court scheduled the dispute for oral arguments in April — perhaps anticipating that the Senate would get around to confirming the new associate justice by then and the Supreme Court would have a full bench.

Chip Somodevilla/Getty Images
In a 5-4 decision, the Supreme Court in 2014 sided with the arts and crafts chain Hobby Lobby in its religious challenge to the contraceptive coverage requirement of the Affordable Care Act.

Barry Lynn, the executive director of Americans United for Separation of Church and State, a group that advocates for a strong wall between religious freedom and government intrusion, said Gorsuch’s record as an appeals judge suggests where his loyalties might lie in a case of this magnitude.

Gorsuch has displayed an “apparent disinterest in preserving what we consider legitimate religious freedom rights and substituting a view that has developed in the last decade or so,” said Lynn, whose group joined with other religious and civil liberties organizations and filed a legal brief supporting Missouri.

“We were not happy about Neil Gorsuch’s confirmation,” Lynn added.

The Trinity Lutheran case has all the elements of a blockbuster: a sympathetic religious school, claims that Missouri discriminated against it, and a tug-of-war between the federal Constitution and the state’s own charter, which prohibits that public funds be given to “any church, sect or denomination of religion.”

Dozens of organizations have also filed briefs in the dispute, and so far Trinity Lutheran appears to have more friends supporting it — the coalition includes major denominations, Christian colleges, members of Congress and conservative-leaning states.

Alliance Defending Freedom, the legal advocacy group defending the church before the Supreme Court, wasn’t shy about its endorsement of Gorsuch. In a news release praising his confirmation, the group called him “a natural successor to Justice Scalia.”

In an interview, Erik Stanley, a senior attorney with Alliance, pointed to Gorsuch’s record as a judge as a harbinger of how he might approach Wednesday’s hearing.

“We do know that Justice Gorsuch has been a friend to religious liberty in the cases that have appeared before him,” Stanley told The Huffington Post. “He’s had the opportunity to rule on religious liberty issues a few times. He’s always been positive to religious liberty. We hope that that continues in this case.”

It is not for secular courts to rewrite the religious complaint of a faithful adherent. From Judge Neil Gorsuch's concurrence in the Hobby Lobby case

But Stanley added that he hopes “all nine justices” on the Supreme Court see Missouri’s treatment of Trinity Lutheran as “blatant religious status discrimination” — since the program under which its school applied for funds was supposed to be applied neutrally to all schools, no matter their affiliation or lack of one.

Gorsuch’s strongest endorsement of religious freedom to date came in none other than the controversial Hobby Lobby case, a religious challenge to the Affordable Care Act’s requirement that employers provide free contraceptive coverage to all employees. Before that case headed to the Supreme Court, the judge wrote a pointed concurrence supporting the Green family, the Hobby Lobby owners who claimed that complying with federal law would be a “substantial” burden on their Christian faith.

“As the Greens describe it, it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible,” wrote Gorsuch in 2013. “And as we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes too much moral disapproval on those only indirectly assisting wrongful conduct.”

During his confirmation hearings in March, Gorsuch defended his court’s decision in that case, which was later upheld by an ideologically split Supreme Court. The high court ruled that religiously owned corporations were covered by a federal law that limits how the government may burden a person’s exercise of religion.

Gorsuch told members of Congress they could always go back to the drawing board and rewrite the law.

“It has all of those options available, Senator,” Gorsuch said during an exchange with Sen. Dick Durbin (D-Ill.) during his hearings. “And if we got it wrong, I’m sorry. But we did our level best, and we were affirmed by the United States Supreme Court. And it’s a dialog — like any statutory dialog between Congress and the courts.”

 

In the Trinity Lutheran case, the stakes are even higher because a majority of the Supreme Court could be convinced to read the First Amendment of the Constitution as providing a ceiling for how states may restrict funding to churches and religiously affiliated entities.

The state of Missouri, at least until a new governor took office in January, maintained that its constitution treats all churches equally — and that its funding prohibition shouldn’t be seen as proof of religious bigotry.

“Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray, and practice any other aspect of its faith however it wishes,” read the brief signed by lawyers from its prior administration. “The State merely declines to offer financial support.”

In 2004, the Supreme Court upheld a similar Washington State constitutional provision that denied funding to college students pursuing “devotional” theological studies. But the court that decided that case looked a lot different than the present court — which has since decided Hobby Lobby and has been more amenable to religious claims.

Gregory Lipper, a former church-state litigator with Americans United who is now in private practice, said things could continue down that path now that Gorsuch is on the court.

“He may well cast the decisive vote holding that Missouri taxpayers are required to fund the church’s renovations,” he said.

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