U.S. Supreme Court building. The NLJ/ Diego M. Radzinschi

The U.S. Supreme Court on Monday sided with a Missouri church in a closely watched First Amendment case, ruling that states cannot exclude religious institutions from obtaining funds from neutral government grant programs.

The state’s policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character,” Chief Justice John Roberts Jr. wrote for the majority on the court’s final sitting of the current term. The policy “puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution.”

The case, titled Trinity Lutheran Church of Columbia v. Comer, was brought by the church to challenge the state’s exclusion of religious organizations from receiving state money from a program that used discarded tire scraps to resurface school playgrounds.

The 7-2 ruling marks Justice Neil Gorsuch’s first participation in one of the high court’s marquee cases, and was viewed as an early test of his views on church-state issues. As a judge on the U.S. Court of Appeals for the Tenth Circuit, Gorsuch showed deference to religious organizations on issues including the contraceptive requirement in the Affordable Care Act and religious displays on public property. 

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented. “This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state,” Sotomayor wrote. “The court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”   

The case was a key test of so-called Blaine Amendments—19th century enactments that are still part of constitutions in 37 states, including Missouri—prohibiting the allocation of any state funds whatsoever to churches or religious institutions. According to an Institute for Justice brief in the case, these amendments were the product of virulent post-Civil War anti-Catholic sentiment.

The church operates a school for children age 2 to kindergarten. Alliance Defending Freedom, which represents the church, told the high court that the exclusion “sends a message that Trinity’s children are less worthy of protection simply because they play on a playground owned by a church.”

But the state defended the prohibition, asserting that it did not impinge on the church’s religious practice or freedom and serves a government interest in not having to choose which religious group should or should not receive a benefit from a limited grant program.

The petition in the case was first filed in November, 2015, and the court granted certiorari in January 2016. The death of Justice Antonin Scalia the next month prompted the court to hold off hearing arguments in the case until a nominee was confirmed to replace Scalia, probably to avoid a 4-4 tie. Gorsuch was confirmed in April of this year, and the Trinity Lutheran case was argued soon thereafter. As it turned out, the court would have sided with the church even without a ninth justice.

Just days before the oral argument, recently elected Missouri Gov. Eric Greitens announced a change in policy to allow religious schools to apply for such grants in the future. The high court asked both sides to brief whether the change affected the case, and both urged the court to continue, arguing that the governor’s voluntary change was not necessarily permanent. The court apparently agreed, and the case was argued.

David Cortman, senior counsel at Alliance Defending Freedom, argued the case for the church while James Layton of Tueth Keeney Cooper Mohan Jackstadt in St. Louis, a former solicitor general for Missouri, argued for the state.

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