Written by Don Byrd
Neil Gorsuch was confirmed to the U.S. Supreme Court by a 54-45 vote of the U.S. Senate on Friday, replacing the late Antonin Scalia. The Washington Post reports he will be sworn in Monday and likely get right to work. And one of the first cases he will likely impact is a significant religious liberty case involving government funding of a church, scheduled for oral argument on Wednesday, April 19.
A central issue in Trinity Lutheran Church v. Comer is whether a state law barring taxpayer funding of religion may be interpreted by the state to exclude churches from government grant programs. In this case, a church’s application for one of Missouri’s limited playground refurbishment grants was denied, citing a provision in the state’s constitution prohibiting government aid to religion. Here, Missouri law explicitly prohibits money from the state treasury from being used “in aid of any church, sect or denomination of religion.”
The church argues that such a denial violates their rights of religious exercise by discriminating against religion. But, as the Baptist Joint Committee argued in a brief to the court (see my overview of the brief here), barring taxpayer funds from direct distribution to churches has been a longstanding bastion of church-state protections aimed at avoiding government favoritism for or against a particular religion.
The BJC’s Holly Hollman explains it this way:
“Houses of worship and the government have separate funding sources, and they have different roles and responsibilities,” said Holly Hollman, general counsel of the Baptist Joint Committee. “Restrictions on aid to religious institutions are not suspect, but they are an effective means to protect religious liberty and the separation of church and state.”
“Although our constitutional tradition allows for limited government funding for some activities of religiously affiliated nonprofits, churches are treated differently, and that’s good for churches,” Hollman continued. “All houses of worship receive special legal status to protect their autonomy and religious liberty.”
Trinity Lutheran has been in limbo for months, perhaps because for the last year, there have been only eight Supreme Court justices and the Court sought to avoid a likely 4-4 tie. The addition of Gorsuch clears the way for a majority decision one way or another. The newest Justice stands to cast a pivotal vote in on of his first cases on the high court, a vote that could significantly alter the church-state landscape when it comes to government funding for churches, and the discretion afforded to states, or not, in enforcing laws designed to protect both the taxpayer and our houses of worship against government wading into matters of religion.
As a judge on the 10th Circuit Court of Appeals, Gorsuch did not have much opportunity to apply his legal views on church-state matters involving government funds. What we do know about his interpretation of the Establishment Clause raises concerns about his commitment to this essential religious liberty guaranty. But we may soon have a clearer picture, as he weighs in on Trinity Lutheran. Stay tuned.
For more, see the Baptist Joint Committee’s resource page on Trinity Lutheran.