Written by Don Byrd
In orders issued last week, the U.S. Supreme Court once again declined to schedule Trinity Lutheran Church v. Pauley for oral argument, despite having agreed to hear the appeal back in January. A Washington Post report on Saturday wonders whether the delay could reflect an anticipation that a 9th justice, replacing Justice Antonin Scalia who passed away early this year, may finally be added before the inauguration of a new President.
Here is an excerpt:
[T]he new Supreme Court calendar suggests that the remaining eight justices are altering their workload in case they have a new colleague on the bench in January.
On Friday, the court released a bare-bones calendar for the two-week period of oral arguments that begins Nov. 28, listing only eight cases to be argued over six days. In normal times, the court would consider something closer to 12 cases in such a period, but it has not scheduled that many cases for either of its hearing periods this term.
There are other reasons to think the court is storing cases in hopes of having a full membership of nine by the end of the year. Three cases the court granted in January 2016, before Justice Antonin Scalia died, have yet to be scheduled for oral arguments [including Trinity Lutheran]. . . .
It seems likely that the court fears it will be tied 4 to 4 on one or more of the cases and is hoping to have a tiebreaker on board by the time they are heard.
Trinity Lutheran could be a significant church-state case. The case involves a church’s application for state funding to update its playground as part of a Missouri program designed to improve playground safety. The Missouri Department of Natural Resources denied Trinity’s request, citing state law prohibiting government aid to religion, a decision upheld by the 8th Circuit Court of Appeal. (A 4-4 Supreme Court tie would leave in place the 8th Circuit’s ruling upholding the state’s enforcement of Missouri’s no-aid to religion law.). Trinity argues the denial of funding amounts to unconstitutional discrimination against religion.
The Baptist Joint Committee filed a brief urging the Court to uphold the right of states to deny direct church funding as a means of maintaining the separation of church and state.
For more, see the BJC’s Trinity Lutheran resource page.
