14:35, April 19 373 0 theguardian.com

2017-04-19 14:35:03
Neil Gorsuch takes back seat as supreme court weighs church-state separation

Neil Gorsuch was content to let his colleagues do the talking on Wednesday as he considered what has been billed as his first “blockbuster case” at the supreme court.

Sworn in last week, Donald Trump’s divisive nominee sprang into his debut on Monday by reportedly asking more questions – 22 – than any of his fellow justices at their first oral arguments.

But the new boy seemed less eager to impress as the court heard from a church that sued Missouri for denying it state taxpayer funds for a playground project – a case that explores the longstanding separation between church and state.

Gorsuch, who replaced fellow conservative Antonin Scalia whose death triggered a bitter political struggle, sat on the far right of the bench – as the most junior justice is wont to do. He said nothing until the last few minutes, despite his known support for religious liberty.

Perhaps he sensed that most of his eight colleagues, conservative and liberal alike, were sympathetic to the Trinity Lutheran church in Columbia, Missouri, which argues that it should be allowed to apply for a state grant programme that helps not-for-profit groups buy rubber playground surfaces made from recycled tyres.

The church, which runs a preschool and daycare centre, contends that its playground is open to the public in summer and so should be eligible for state assistance. Missouri insists that, as a religious institution, the church is not eligible for state-funded upgrades.

Setting the parameters, Justice Ruth Bader Ginsburg recalled the supreme court’s 1947 ruling in Everson v Board of Education that established separation between church and state. “This court said in no uncertain terms what the framers didn’t want was tax money imposed to pay for building or maintaining churches or church property,” she said. “And doesn’t that fit this case?”

Not so, said David Cortman, counsel for the Trinity Lutheran church, suggesting that the Everson case also emphasised that religious people and organisations not be deprived of general government benefits. “I think there’s a difference between funding of religious activities and funding secular activities of a religious organisation.”

Justice Sonia Sotomayor, a liberal member of the court, was the most forthright in indicating support for the state ban, citing the difficulty of separating the secular and religious functions of religiously affiliated groups when distributing funds.

“We seem to be confusing money with religious practice,” she said. “No one is asking the church to change its beliefs. They’re just saying we don’t want to be involved in the church … You have a playground. No one is taking the playground away from you.”

But even Sotomayor acknowledged: “These church/state divides, it’s a fraught issue, it’s a hard issue. It’s an issue in which states have their own very longstanding law. It’s an issue on which I guess I’m going to say nobody is completely sure that they have it right.”

James Layton, defending the state of Missouri, argued that it did not want to be seen to be showing favouritism. “We don’t want to be in a position, for example, in this case, where we are selecting among churches,” he told the court. “We don’t want to be in a position where we are making a visible, physical improvement on church property.”

But Justice Stephen Breyer wondered whether the US constitution permits a city or state to give police, fire and health protection to everyone but churches. “If it does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, 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, etc? What’s the difference?”

Layton contended that such benefits are provided universally across the state, whereas the Trinity Lutheran church would benefit selectively.

Another liberal justice, Elena Kagan, also appeared sympathetic to the school. “Essentially this is a programme open to everyone,” she said. “You are depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.”

She added: “This is a clear burden on a constitutional right and then your interests have to rise to an extremely high level.”

As Clarence Thomas observed his customary silence, Gorsuch weighed in briefly, right at the end of the oral arguments. “How is it that discrimination on the basis of religious exercise is better in selective government programmes than general programmes, first?” he demanded. “And second, how do we tell the difference between the two, if that’s the line we’re going to draw?”

Layton responded that a publicly announced selective programme is different from general programmes. Gorsuch chided: “But how do we draw the line between selective and general? One could seem to play with that line forever.”

Layton said: “Well, one could, just like the rest of the lines in this case. We don’t get a fine line …”

Gorsuch, formerly an appeals court judge based in Colorado, shot back: “Well, discrimination on the basis of status of religion, there’s no line-drawing problem there. We know that’s happened in this case, right?”

Layton said: “We do know that the decision here was made because it was a church.”

The Missouri constitution bars “any church, sect or denomination of religion” from receiving state money, language that goes further than the US constitution. Three-quarters of states have provisions similar to Missouri’s barring funding for religious entities.

Trinity Lutheran – backed by the Alliance Defending Freedom, a conservative Christian activist group – sued in federal court in 2012. The St Louis-based eighth US circuit court of appeals in 2015 upheld a trial court’s dismissal of the suit, and the church appealed to the supreme court.

There was brief mention during oral arguments of the fact that Missouri’s Republican governor, Eric Greitens, last week reversed the state policy that banned religious entities from applying for the grant money, saying it was wrong for “government bureaucrats” to deny grants to “people of faith who wanted to do things like make community playgrounds for kids”. But both the state and the church have still urged the justices to decide the case anyway because of the important issues and because the governor’s action could one day be reversed.

The case, which could have implications for wider issues including school vouchers, was submitted for judgment at a later date.