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WASHINGTON — The Supreme Court doesn’t always see eye to eye when messy issues of church and state collide. But what if it’s schoolchildren who lose out if the court gets it wrong?
A majority of the justices on Wednesday seemed to recognize that the state of Missouri may have discriminated against a church that was shut out of a competitive funding program open to schools wishing to resurface their playgrounds with tire scraps. Under the state’s constitution, no public funding may go to “any church, sect or denomination of religion.”
The case, Trinity Lutheran Church v. Comer, calls into question the state’s application of that provision, which the church claims violates the federal Constitution. The Supreme Court has upheld similar funding prohibitions in the past, but here the church insists that its school was denied funding solely on account of its religious status — and that the funds it sought for tire scraps should’ve been granted because they wouldn’t be used for religious instruction.
Given the stakes of the case, one of the biggest church-state disputes the Supreme Court has heard in the past decade, all eyes were on Justice Neil Gorsuch, the court’s newest member and someone whose record suggests a sympathy for religious rights.
But it turned out the rookie justice only played a minor role in the hearing, intervening toward the end of an hourlong session in which even some of the more liberal justices appeared ready to recognize that there are constitutional limits to denying funding to religious schools for something that isn’t exactly sectarian: the type of surface upon which children play.
When Justice Elena Kagan told the lawyer representing Missouri that the state’s treatment of the church school appears to be “a clear burden of a constitutional right,” it became apparent that maybe the dispute isn’t as close as some observers anticipated.
“As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things,” Kagan said. “And I would have thought that that’s a pretty strong principle in our constitutional law. And how is that the State says that that’s not violated here?”
The Supreme Court itself sent signals that the case could be a divisive one. The justices agreed to hear it before the death of Justice Antonin Scalia, and it wasn’t until President Donald Trump nominated Gorsuch to replace him that the court decided it to schedule it for oral arguments — an indication that maybe the powers that be at the court wanted a fully staffed bench before the justices entertained the challenge.
This is a developing story and will be updated.
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