WASHINGTON — The Supreme Court has waited 15 months to take a swing at what may be the premier case of its lackluster term — but at the last moment, the church-state dispute over a Lutheran church's playground may be slip-sliding away.
On the surface, the case is about just that: the unforgiving, pea gravel surface of the playground at Trinity Lutheran Child Learning Center in Columbia, Mo. Children have been scraping their knees and elbows there for years, and the church wants to replace it.
Therein lies the rub. Its application for a state grant to install a rubber surface made from recycled tires was turned down in 2012 because the state constitution — similar to those in more than 30 states — prohibits giving public funds to religious institutions.
"We were surprised we were singled out and rejected because we are religious," Annette Kiehne, the center's director, says. "I thought it was very sad that our kids were going to be denied a safer playground simply because their preschool is owned by a church."
So the church sued, and while it has lost at every turn, the trend has been turning in its favor. A federal district judge ruled for the state. An appellate court panel issued a split, 2-1 verdict. The full appeals court locked up, 5-5. The Supreme Court agreed to hear the case. One of the justices who likely did so, Antonin Scalia, died, but his seat was held open 14 months -— and the case put on hold that long — until fellow conservative Neil Gorsuch was confirmed this month.
The last favorable turn of events, however, may put the entire case on hold. The state's new Republican governor, Eric Greitens, last week reversed the state policy and said churches will be eligible for such grants in the future. While Trinity's denial still stands, the governor's action could lead the justices to declare the case moot.
That would make it the second major case to be jettisoned this term. Last month, the high court sent a transgender student's challenge to a Virginia school district's bathroom policy back to federal appeals court after the Trump administration withdrew guidance issued under President Barack Obama that had instructed schools to let students use restrooms corresponding to their gender identity.
Perhaps sensing victory, the conservative Alliance Defending Freedom, which is representing the church, urged the court to hear and rule on its case. It reasoned that the new policy does not affect its five-year-old denial, can be changed by a future administration, and still leaves intact a state Supreme Court ruling that the state's constitution forbids approving the church's application.
"A change in administration could readily lead to a resumption of the state’s former policy of excluding churches from the scrap tire program, or the governor could simply change his mind due to political pressure," senior counsel David Cortman told the court in a letter Tuesday.
The state attorney general's office agreed, urging the court in a separate letter to hear and decide the case -- in part because the governor's new policy is likely to face a court challenge from Missouri taxpayers who do not want their money funding religious institutions. It authorized the former solicitor general, who served in a Democratic administration, to defend the now-defunct policy.
But two liberal groups, the American Civil Liberties Union and Americans United for the Separation of Church and State, told the justices Tuesday that the case should be declared moot -- thereby leaving the lower court ruling against the church intact. The church, they said, "has received all the relief that it has requested — eligibility to compete for future grants from the Department of Natural Resources.... There is no live controversy."
The state program is popular on several fronts. Non-profit organizations get money for playground repair that comes from fees on new tires. The old tires are recycled, helping the environment. But even though Trinity placed 5th among 44 applicants, the state passed it over because of its religious affiliation.
The church raised two central claims in court papers. It said the exclusion violates the First Amendment’s protection against policies prohibiting the free exercise of religion, as well as the 14th Amendment's promise of equal protection for all.
"A rubber playground surface accomplishes the state’s purposes, whether it cushions the fall of the pious or the profane," its court papers said. Although a 2003 Supreme Court precedent upheld Washington state's refusal to give scholarship funds to theology majors, the church argued, "the surface that children play on as they enjoy recess is about as far as one can get from the devotional training of clergy."
If the Supreme Court were to rule against the church, its supporters say, that could give states justification to deny funds for other services, ranging from police and fire protection to soup kitchens and battered women's shelters. The conservative Institute for Justice says 1.3 million students in school-choice programs could be affected.
Missouri defends its policy as treating all religions and religious groups the same. While the free exercise clause requires that the state not interfere with the church's activities, it does not require state funding, it argued in legal papers.
Daniel Mach, director of the American Civil Liberties Union's program on freedom of religion and belief, says James Madison warned at the nation's founding that government money for religious institutions would lead to "unwilling taxpayers." The church, he says, is asking for "a handout from the government."
While the church and its playground users may win the sympathy vote, appellate lawyer Aaron Streett says, "This is not a slam-dunk case." The high court has ruled in the past that there is what it called "play in the joints" between the Constitution's free exercise clause, which protects religious groups, and establishment clause, which keeps church and state apart.
The addition of Gorsuch after a 15-month holding pattern would appear to help the church's cause. He has ruled in favor of religious freedom on the U.S. Court of Appeals for the 10th Circuit, most notably siding with the Hobby Lobby chain of craft stores in its challenge to the Obama administration's mandate that employers offer free coverage of contraceptives to their employees. The Supreme Court backed Hobby Lobby in a 5-4 decision in 2014.