Justices appear sympathetic to Missouri church seeking playground improvements

The justices will hear a challenge from Trinity Lutheran Church in the midwestern city of of Columbia, Missouri.

"Well, discrimination on the basis of status of religion, there's no line-drawing problem there", Gorsuch said.

"It does seem this is a clear burden on a constitutional right", Justice Elena Kagan told Missouri's attorney, James R. Layton, adding that "you're depriving one set of actors from being able to compete in the same way everyone else can compete due to their religious identification".

The court must decide whether Missouri is entitled to reject a church grant to use recycled tires to resurface a playground. Other properties of non-profits and secular institutions are eligible for the program. This program offers funds from the state to pay for educational tools.

The fundamental issue at hand is whether a state can exclude religious individuals or organizations from secular public benefit programs, according to the Alliance Defending Freedom (ADF).

"Almost 200 years ago, the people of the state of Missouri, adopting language that finds its origin in the founding fathers in Virginia and elsewhere, decided that we were not going to tax people in order to give money to churches", Layton stated at a news conference after the hearing.

The case, which tests the limits of religious freedom under the U.S. Constitution, is considered one of the most important to come before the court during its current term. Other states have similar amendments.

The dispute pits two provisions of the U.S. Constitution's First Amendment against each other: the guarantee of the free exercise of religion and the Establishment Clause, which requires the separation of church and state. But there are questions over whether the nine justices will end up deciding the merits of the case after Missouri's Republican governor, Eric Greitens, last Thursday reversed the state policy that banned religious entities from applying for the funds.

In response to a question from Justice Stephen Breyer, Layton said the state could not deprive the church of police, fire and public health protection without violating the U.S. Constitution.

Mr Cortman faced resistance from Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, all of whom asked about potentially religious uses of the playground and whether these justify denying Trinity Lutheran the grant.

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"All we're talking about is a safer surface on the playground for when kids play", he said.

The church distinguishes its case from Locke v. Davey, arguing that the state funds in that instance were used to fund the religious training of clergy.

"Missouri's express discrimination against religion should be declared unconstitutional", the brief said.

The district court's ruling was based in part on a 2004 Supreme Court decision in Locke v. Davey, in which the state of Washington was permitted to deny scholarship funding to a student of "devotional theology".

Justice Sotomayor pressed Cortman to explain how the church's free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface.

Former Missouri Solicitor General James Layton argued the case before the high court for Missouri. To his mind, the state is punishing a church exclusively because of its religious practice-which is forbidden by the Free Exercise Clause.

At question is Article 1, Section 7 of our state Constitution. "No one is asking the church to change its beliefs", she said.

"While this case may be about a church playground, the next case could easily involve a church that demands taxpayer money for a shelter but then refuses to allow same-sex couples to use its shelter", he said.

Gorsuch, the court's newest member, was subdued by comparison to his active involvement during his first two days of arguments. As Justice Kagan put it, the church-state divide is a "fraught issue" in which "states have their own very longstanding law" and "nobody is completely sure they have it right". The church wanted to improve the playground at its preschool and daycare center. Wednesday's argument date was finally set February 17, shortly afterGorsuch's nomination.

Gorsuch, who in seminal cases as an appeals judge has forced government to accommodate religious practice whenever reasonable, should answer no - and so should his colleagues.

(Copyright © 2015. All Rights Reserved.)
 
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