Both sides say it's necessary to move forward because of confusion about the proposed policy shift, but some legal scholars argue that Trinity Lutheran Church v. Comer is now moot. The case was argued before the justices Wednesday - and it's being closely watched by proponents of school vouchers.
Several justices appeared skeptical of Missouri's rationale for denying a church preschool access to a reimbursement program meant to encourage safety updates to playground surfaces. Trinity Lutheran sought the funds despite regulations barring state grants to religious institutions.
The decision eventually is expected to impact the fight that is erupting all across the nation - whether state education funds can go to school voucher programs that include religious schools. Trinity Lutheran has always hinged on framing: If the justices saw the Missouri rule as a sensible safeguard against church-state entanglement, they'd probably uphold it; if they saw it as an attack on houses of worship, they'd likely strike it down. As our preview of the case noted, Trinity Lutheran's application for the programme was denied, despite being highly rated, because Missouri's constitution bars state funds from flowing, directly or indirectly, "in aid of any church, sect or denomination of religion". We are just asking to not be treated worse than everyone else.
The Missouri case is an attempt to lower that wall separating church and state.
What does this have to do with Colorado?
"Both the Colorado and Missouri Blaine Amendments share discriminatory, anti-Catholic origins that make their contemporary use to compel religious discrimination particularly unacceptable", lawyer Paul Clement wrote on behalf of the Colorado county.
The Missouri Attorney General's Office has recused itself from handling a U.S. Supreme Court case due to a conflict of interest.
It was not until late in the argument that the court's newest member, Justice Neil M. Gorsuch, chimed in with some questions.
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Instead, an intense hour of oral arguments focused on the merits.
Justices Stephen Breyer and Kagan followed up, asking him if emergency responses by fire departments or police officers to the school, or public health programs, would be allowed under the state's constitution.
"In essence, the church is arguing that states can't specifically exempt religious organizations from grant programs that it chooses to provide", said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.
"The separation of church and state is an important principle", said Richard Garnett a freedom of religion expert at the University of Notre Dame, "but it does not prevent religious institutions and governments from cooperating to advance public purposes and secular purposes like protecting preschoolers' knees". His clearest moment came at his last moment at the lectern: "writing a cheque that says "payable to Trinity Lutheran Church" ought to be on the other side of the line". It raises issues of separation of church and state and whether individual states can make the barriers higher than the U.S. Constitution imposes. This is because Missouri state officials cited the Blaine Amendment section from the Missouri Constitution prohibiting government aid to religious institutions. Annette Kiehne thanked the Supreme Court justices for hearing the case.
This dichotomy bothered Gorsuch, who asked, "How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs?"
Although Justices Ruth Bader Ginsburg, Breyer, and Kagan raised questions about the posture of the case, it appeared unlikely that a majority of the court was interested in disposing of the case without answering the question raised by the church. So I'm not sure how this is a free-exercise question, because there is no effect on the religious beliefs.
But 10 legal and religious historians said in a court filing there is no evidence "anti-Catholic or anti-religious animus" played a role in the adoption of the Missouri constitutional provision. Cortman replied that the decision also said that churches shouldn't be deprived of all public benefits. Even though Missouri is one of 39 states across the country that now have restrictions on the state support of churches, last week, Missouri Gov. Eric Greitens, spoke out against the restriction.
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