The U.S. Supreme Court is set this week to hear a closely watched case testing the limits of religious rights, and new Justice Neil Gorsuch's judicial record indicates he could tip the court toward siding with a church challenging Missouri's ban on state funding of religious entities.
Trinity Lutheran Church, which is located in Columbia, Missouri and runs a preschool and daycare center, said Missouri unlawfully excluded it from a grant program providing state funds to nonprofit groups to buy rubber playground surfaces.
Missouri's constitution prohibits "any church, sect or denomination of religion" from receiving state taxpayer money.
Gorsuch, who embraced an expansive view of religious rights as a Colorado-based federal appeals court judge, on Monday hears his first arguments since becoming a justice last week. He will be on the bench on Wednesday when the justices hear the Trinity Lutheran case, one of the most important of their current term. Gorsuch, appointed by President Donald Trump, restored the Supreme Court's 5-4 conservative majority.
Trinity Lutheran wanted public funds to replace its playground's gravel with a rubber surface made from recycled tires that would be safer for children to play on.
The U.S. Constitution calls for a separation of church and state and guarantees the free exercise of religion.
At the very least, a victory for Trinity Lutheran would help religious organizations nationwide win public dollars for certain purposes, such as health and safety.
But it also could bolster the case for using public money for vouchers to help pay for children to attend religious schools rather than public schools in "school choice" programs backed by many conservatives. For example, Colorado's top court in 2015 found that a Douglas County voucher program violated a state constitutional provision similar to Missouri's.
Trinity Lutheran's legal effort is being spearheaded by the Alliance Defending Freedom conservative Christian legal activist group, which argues Missouri's policy violates the U.S. Constitution's guarantees of free exercise of religion and equal protection under the law.
If the church wins, "religious organizations cannot be excluded from general public welfare benefits that apply to everybody," said Erik Stanley, an alliance lawyer representing the church.
Referring to Gorsuch, Stanley said, "He has definitely been a friend of religious liberty. So we are hopeful that will continue when he's on the court, and we're grateful he gets to participate on this important case."
In 2013, Gorsuch sided with the evangelical Christian owners of arts-and-crafts retailer Hobby Lobby and allowed owners of private companies to object on religious grounds to a provision in federal healthcare law requiring employers to provide medical insurance that pays for women's birth control.
Gorsuch wrote in a concurring opinion that Hobby Lobby's owners faced a choice "between exercising their faith or saving their business." The Supreme Court later affirmed the ruling.
Missouri said there is nothing unconstitutional about its grant program.
"Trinity Lutheran remains free, without any public subsidy, to worship, teach, pray and practice any other aspect of its faith however it wishes. The state merely declines to offer financial support," the state said in legal papers.
The church has drawn support from the religious community including the U.S. Conference of Catholic Bishops, the Mormon Church and Jewish groups.
'Open the floodgates'
Groups filing legal papers opposing Trinity Lutheran, including the American Civil Liberties Union, said government funding of churches is precisely what the Constitution forbids.
"Forcing states to provide cash to build church property could open the floodgates to programs that coerce taxpayers to underwrite religion," said Daniel Mach, director of the ACLU's program on freedom of religion and belief.
Mach said three-quarters of the U.S. states have provisions like Missouri's.
Alliance Defending Freedom, which also opposes gay marriage, transgender protections and abortion, has another major case involving religion that the Supreme Court could take up in its term beginning in October. It represents a Colorado bakery's Christian owner who argues the Constitution's promise of religious freedom means he should not have to make a wedding cake for a gay couple.
Trinity Lutheran sued in federal court in 2012. The St. Louis-based 8th U.S. Circuit Court of Appeals in 2015 upheld a trial court's dismissal of the suit. The appeals court said
accepting the church's arguments would be "unprecedented," noting the Supreme Court's 2004 decision in the case Locke v. Davey that upheld a bar on Washington state scholarships for students preparing for the ministry.
The justice who Gorsuch replaced, the late fellow conservative Antonin Scalia, was one of two dissenters in the Locke ruling. When a state withholds a generally available benefit solely on religious grounds, it is like an unconstitutional "special tax" on religion, Scalia said.
Judicial observers have described Gorsuch as very much in the mold of Scalia.
Missouri's grant program was meant to keep tires out of landfills while also fostering children's safety. The church's brief to the high court stated, "A rubber playground surface accomplishes the state's purposes whether it cushions the fall of the pious or the profane."