By Chuck Raasch, St. Louis Post-Dispatch

WASHINGTON — In a case involving Missouri’s Constitution and its politics, the U.S. Supreme Court vigorously grilled on Wednesday lawyers from both sides but had its sharpest questions for the lawyer representing the state.

The court, now fully seated at nine with Justice Neil Gorsuch’s recent confirmation, is being asked to rule in the case of Trinity Lutheran Church of Columbia vs. Carol S. Comer, the director of the Missouri Department of Natural Resources. At issue is a 19th-century constitutional amendment prohibiting state resources from going to religious institutions.

Missouri used that amendment to deny Trinity Lutheran Church state funding to cover its preschool playground with recycled rubber. The Blaine Amendment, which critics say developed from anti-Catholic sentiment, is in effect in Missouri and 37 other states.

The court’s decision later this year could affect church-state relations in dozens of states around the country.

The case was thrown a late-in-the-game curveball by Gov. Eric Greitens, a Republican, who announced last week that he would allow religious institutions to apply for the same kind of state grants that were denied Trinity, and which formed the basis of the church’s case against the state. Several justices asked if Greitens’ actions made the case moot, but oral arguments continued.

The justices saved their sharpest questions for James Layton, who was representing the state’s previous position — that a “bright line” should be maintained prohibiting state funds for state aid such as that sought by Trinity. In fact, justices asked, didn’t other state funds, such as police and fire protection, also benefit religious institutions?

Layton, a former solicitor general for Missouri, argued the state’s case pro bono before the court after newly elected Attorney General Josh Hawley, a Republican, recused himself and his entire office.

Isn’t helping the church’s preschool and day care to provide a safer playground with a rubberized surface the same thing as the state helping with vaccinations or other health programs? Justice Stephen Breyer asked Layton.

“How does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera? What’s the difference?” Breyer asked.

Layton responded that the benefits citied by Breyer were “universal” and not “selective,” as he maintained Trinity Lutheran’s would be.

Layton added that the state did not want to “be in a position … where we are selecting among churches. We don’t want to be in a position where we are making a visible, physical improvement on church property.”

Justices questioned David Cortman, attorney for Trinity Lutheran, about how the church’s school could separate its playground from its religious teaching without violating the state’s Constitution.

“How is the building separate from the religious exercise therein … how do you separate out its secular function from its religious function?” Justice Sonia Sotomayor asked.

“Even though the motivation behind operating this preschool is a religious motivation, [that] doesn’t mean every single activity that occurs there happens to be religious,” Cortman responded.

But by the state’s denying the church the playground rubber, Sotomayor persisted, “no one is asking the church to change its beliefs. In fact, no one is asking the church as a condition of saying don’t use what we give you for religious purposes; they’re not even doing that. They’re just saying we don’t want to be involved with the church.”

Cortman replied: “There’s government coercion when you say ‘there’s a public benefit, and the only way you could receive that public benefit is if you do not exercise your religion.’”

Greitens broadened the political and legal spotlight on the case on April 13 when he announced that the state’s previous policy of denying money to religious institutions was “prejudiced.”

That essentially put Layton on a legal island; he was arguing for the policies of Missouri’s previous Gov. Jay Nixon, a Democrat, that have now been reversed by Greitens.
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