Trinity Lutheran Church of Columbia, Inc., (Petitioner) v. Carol S. Comer, Director, Missouri Department of Natural Resources (Respondent)

John G. Roberts, Jr.

We'll hear argument first this morning in Case 15-577, Trinity Lutheran Church v. Comer. Mr. Cortman.

David A Cortman

Thank you, Mr. Chief Justice, and may it please the Court: The State of Missouri has excluded The Learning Center from a recycling program that provides a safer playground for children solely because the preschool is operated by a church rather than a secular not-for-profit. The State has made several important concessions in this case.

Number one, that the policy in this case is not facially neutral, and number two, that based on their religious character, churches are not eligible for the benefit here. This admitted discrimination against religion violates this Court's Free Exercise Principles. First, as stated in McDaniel and Smith, the Free Exercise Clause prevents the government from imposing special disabilities on the basis of religious views or religious status, and forcing a choice between the exercise of religion and receiving either a government benefit, right, or privilege.

Anthony M. Kennedy

Assuming that there's no serious risk of an establishment violation, that's off the table, are there ever instances in which status -- religious status can be used to deny religions or religious believers benefits from the State? Or are you saying that it's -- that absent in Establishment Clause problem, that status can never be the base -- religious status can never be the basis for a governmental action or governmental ordinance, governmental statute?

David A Cortman

I -- I'm not sure if it can be.

I can't think of a specific example.

And the reason I say that is, the question is, is why would someone's religious status matter in the first place to receiving a government benefit? And that's another --

Ruth Bader Ginsburg

On that -- on that question, I guess rather long ago now in the Everson case back in 1947, 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.

And doesn't that fit this case? And if so, is Everson passé?

David A Cortman

I don't think it does. Everson also said that we have to be careful in not establishing a church not to deprive religious people or organizations of general government benefits.

And so I think that's the key here.

I think there's a difference between funding of religious activities and funding secular activities of religious organization.

And I --

Sonia Sotomayor

So how is the building separate from the religious exercise therein? I believe that this playground is part of the ministry of this church.

And, in fact, I look at its bylaws, I look at its advertisements, and it includes play and conducted in a religiously valuable way.

I think that's the materials that you're -- that the church is advertising. How do you separate out its secular function from its religious function?

David A Cortman

I think the way the Court always has.

And the answer to that is, for example, even though the motivation behind operating this preschool is a religious motivation, doesn't mean that every single activity that occurs there happens to be religious.

Sonia Sotomayor

Well, how about if the school does a prayer before the children start playing?

David A Cortman

I don't think --

Sonia Sotomayor

Or how about if it chooses on a sunny day to do its religious instruction outside.

How does the State know or how can it control without then controlling on the -- on the basis of belief and viewpoint? How could they control against that involvement?

David A Cortman

Sure.

It's the same way it has in all the case law.

And that is, is we have to look at where's the money going to? What's it going to fund? And in this particular instance, for example, if you look at the -- this Court's case law going back from Everson and all the way forward, it always said is the money going to a religious activity or is it going to a secular activity? This Court has approved funding to --

Elena Kagan

But --

David A Cortman

-- religious schools, just not for religious activities.

Elena Kagan

So do you think, Mr. Cortman, suppose there was an application and a -- from a -- a church that used its playground for religious activities.

Had prayer services there, for example.

Could the State, in your view, deny the money on that ground, or at least would you think that that was a significantly different case?

David A Cortman

I -- I think it would be a different case.

I would say the answer to the question would be I don't think they should, and here's why: I think there would be a --

Elena Kagan

That they -- I'm sorry. They don't think they should --

David A Cortman

They should be able to deny it on that ground.

And the reason I say that is, is all we're talking about is a -- is a surface, a safer surface on the playground for when -- when kids play. As was mentioned in one of the amicus briefs, I believe it was the World Vision brief, the surfacing being softer doesn't enable religious activities, it doesn't allow it, it doesn't prohibit it.

It's really completely separate and apart from it. And I think a good example would be something like this --

Elena Kagan

How would you -- for example, one of the things that the Court has -- has thought about in the past is like computers for education.

So I guess somebody could make the same argument about computers.

Well, it doesn't really -- it's separate from the religious instruction that might be carried out over those computers. Do you think that that's the same, or is it different?

David A Cortman

I -- I think it's actually easier than computers because you don't have to get into diversion and all the -- the concept this Court has talked about over the -- over the years in the Mitchell case and the other types of cases. And here the reason is, is that what we're talking about is just a surface.

It's not even the entire playground.

It's just the surface that doesn't enable any religious activity. So, for example, if there was a program from a State that said we have a lot of old buildings in town, and we're going to -- we're going to reimburse for fire extinguishers for all of the old buildings, including the religious schools and all the schools. And they said, but if -- if you have a religious school and you use this fire extinguisher reimbursement, could they then be able to say now that you received that -- that public benefit, that safety benefit, you can no longer include any religion in those classrooms or in the schools?

John G. Roberts, Jr.

But don't you --

David A Cortman

And all my point --

John G. Roberts, Jr.

I'm sorry.

Finish your sentence.

David A Cortman

All my point is I think that would be going too far because it's not advancing or furthering the religious activity.

It's separate and apart from it.

John G. Roberts, Jr.

I'm not sure I understand your answer to the playground being used for a more religious activity.

Let's suppose that the public school sometimes uses its playground for things other than children playing, whatever they're going to have, a -- you know, an auction or anything else. Isn't it the consequence of your argument that the church can use the playground for more religious activities if the public school can use the playground for other non-playground activities?

David A Cortman

I think it can.

And -- and I think that the key here is, is that --

John G. Roberts, Jr.

I'm sorry.

You think it can what?

David A Cortman

I think they should be able to -- I think both the public schools should be able to use it for other activities, and I think that the religious schools should be able to also. And -- and as I mentioned, I think the reason for that is it would be a penalty on the benefit to say because we're putting up a safer surface for when the kids play and fall, and that's the main activity here, if for some reason someone prays one day there or they decide to go outside for -- for one event, that doesn't -- it's not the government there who's advancing religion.

It's an incidental advancement that's -- that's done by the private party.

Elena Kagan

Would you say --

Anthony M. Kennedy

Are all of these questions really ones that verge onto the Establishment Clause; fire extinguishers, bible lessons on a sunny day, and so forth? Because we could go on and on.

Suppose you have an earthquake safety program for schools or -- or for -- for public -- or for buildings with large numbers of people.

And you have an earthquake -- in California, 40 percent of the cost of structure is earthquake-proof. Suppose they have earthquake reinforcement for a -- a church and have to spend extra money because there -- there's a window in the shape of a cross. That's all -- these are all establishment problems?

David A Cortman

They -- they are.

And interestingly in this case, the State concedes, and as did the lower court, there is no Federal Establishment Clause.

Anthony M. Kennedy

But -- see, but that's what makes the case a -- just a little bit -- in -- in -- in my last hypothetical about earthquake safety, any problem there with giving the money to a church and spending extra money for the cross in the window? It's all -- it's for public safety.

David A Cortman

I think it would be an issue on the -- on the Establishment Clause, the question of the Establishment Clause.

But once you get to the fact that there is no Establishment Clause problem, which is what we have here, the question then is can you single out religious people or religious organizations for a penalty from this benefit? Or, as this Court said in McDaniel and Sherbert, is that you're forcing them to choose between exercising their religious faith and receiving the -- a public benefit.

Elena Kagan

Well, I'm sorry --

Anthony M. Kennedy

Going back to my first question, that means what your position is, if there is no Establishment violation, there can never be a distinction based on religion.

David A Cortman

I wouldn't say never.

We -- we --

Anthony M. Kennedy

Give me an example.

David A Cortman

Well, play in -- what comes to mind is Locke v. Davey and play in the joints.

And the reason that's an important one there is because that was a narrow distinction that was based on, what this Court said, a unique historical interest.

And the Court also said that the program there went a long way to include religion.

Here, it closes religion right out at the door.

Sonia Sotomayor

I'm sorry --

Ruth Bader Ginsburg

We -- we did --

Sonia Sotomayor

-- but it does --

Ruth Bader Ginsburg

We did say in this case -- well, I think you stipulated that this school has a nondiscriminatory admissions policy.

But suppose it didn't.

Suppose its policy was we prefer Lutheran children, and then if we have any space left over after that, we'll take other Christians.

And then after that, maybe Jews, and then everyone else.

Everything else is the same.

They want the paving of their playground. Could -- could this -- could they demand as a matter of Federal constitutional right that that playground be funded, even though they have an -- an admissions policy that favors members of their church?

David A Cortman

I -- I think they can, because they have a -- they have a free exercise right to religious autonomy to decide who their members are.

In fact, most private organizations and religious organizations do so.

I --

Ruth Bader Ginsburg

So this church could say, we will take only Lutheran children.

David A Cortman

I believe it can.

Ruth Bader Ginsburg

And -- and still get the public money.

David A Cortman

I believe so, because we're still at the premise of -- of why are we making the church choose between exercising its religion, the same facts in McDaniel v. Paty, and saying he can't both be a minister and also be a constitutional delegate.

Samuel A. Alito, Jr.

Mr. Cortman, do we know what Missouri -- how Missouri interprets the term "church" in its constitution? It speaks about church.

Does it have to be -- is this a matter of the form of the ownership of a facility? Is this playground considered to be -- by the State to be part of the church because of its proximity to the church? What if it was a -- what if we had a -- a religiously affiliated school that was not adjacent to a church and it had a playground.

Would they consider that to be part of -- would they consider that to fall within the prohibition?

David A Cortman

I think it would depending on how religious it is.

And so what Missouri Supreme Court case law has -- says, number one, any -- any organization that's owned or controlled by a church.

So that answers the church part.

Samuel A. Alito, Jr.

So if it's controlled.

David A Cortman

That's right. And also, any religious organizations that are sectarian or denominational.

And so it's not only the church, it's other religious organizations. And Missouri Supreme Court case law says the way we decide those questions is -- is -- is how much religious influence is there in a church? In other words, are they serious about their faith? Do they -- is it voluntary for the students there? And so there's a question about how religious you may be in order to receive the benefit or not.

But it's clear it applies to -- to religious organizations, and that's what their briefing has conceded, and to churches.

Elena Kagan

Mr. Cortman, my questions about religious uses, I think, was to get at a -- a broader point, a broader distinction, and asked -- ask what you think of it.

And as it seems that you are on strongest ground when you say, look, the State has decided to fund some activity, and it's denying that -- that funding to a particular party based solely on that party's religious status.

David A Cortman

Yes.

Elena Kagan

And that's the way you briefed the case. I hear you making a different argument, or a broader argument now, that extends into a State's decision to deny some uses -- to deny funding to some uses at the same time as it gives funding to other uses, and a State's decision to say, look, we really just don't want to fund religious exercise.

They can do religious exercise.

We don't want to fund religious exercise.

And I understand that you might think that's out of bounds, too.

But what I'm trying to figure out is, is there a distinction between these two things.

David A Cortman

I don't think it's a broader argument that we're making.

What I'm -- what I'm trying to communicate is, is that when you look at what you're funding -- so this program says that you can't use this money for any religious activities and it has to go toward the playground resurfacing.

So it's actually a reimbursement grant whereas the church already lays out the finances.

Once it proves that it's put down the surfacing, then it puts its information in and gets reimbursed for it.

So the money has to be used for that. My only point is, is can the State then say, for example, in Everson and Allen, now that we've given you this bus transportation or these books, you can't engage in any religious activity once we've given you that separate benefit.

Not that you can't use the money for religious activity, which you cannot, and we don't -- we don't disagree with that.

The question is --

Elena Kagan

Okay.

So you don't disagree with that.

David A Cortman

That's right.

Elena Kagan

But the State is entitled to say you can't use this money for religious activity, and maybe I'll bring you a little bit further, we're entitled to take certain prophylactic measures to make sure that you don't use the money for religious activity.

David A Cortman

Yes.

But -- I absolutely agree.

But once you take that benefit, I think it goes too far to say, like in Allen, for example, we're providing you with these textbooks, so you have to stop all religion in your school.

And that's all my point of -- that I was trying to --

Elena Kagan

Well, then how about the --

John G. Roberts, Jr.

What does the record show about non-daycare or playground activities on this surface?

David A Cortman

There's -- there's nothing in the record that occurs except for children playing on the playground.

Sonia Sotomayor

Excuse me, but you were talking about Locke --

David A Cortman

Yeah.

Sonia Sotomayor

-- and how this is dissimilar from Locke.

David A Cortman

Yes.

Sonia Sotomayor

Well, there is a tradition.

There are 39 States with constitutional amendments like the one Missouri has.

That's a history that's even longer than the Locke history.

And the essence of that history is, basically, we don't want to, as a country -- well, the vast majority of States, to fund houses of worship.

One would think that if there's play in the joints, that that would include the concept that States are free to say we don't want to spend money from the public FIs on houses of worship. Now, you say this affects free exercise.

We seem to be confusing money with religious practice.

I don't think the two are tied.

This church is not going to close its religious practices or its doors because its playground doesn't have these tires.

So I'm not sure how this is a free-exercise question, because there is no effect on the religious beliefs.

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.

David A Cortman

Sure.

But there's -- 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.

Sonia Sotomayor

But why is that coercion with respect to your beliefs?

David A Cortman

Because it's -- it's a choice, just like with McDaniel v. Paty.

He could not do both things simultaneously.

He could not -- Mr. McDaniel could not both be a minister and be a constitutional delegate, and what the court said forcing that choice --

Sonia Sotomayor

But you can have a playground here.

David A Cortman

But you can't be -- you can't be a religious organization and have a playground.

Sonia Sotomayor

You have a playground. No one is taking the playground away from you.

David A Cortman

No.

But you're -- you're being penalized by not receiving the public benefit --

Sonia Sotomayor

No.

The priest was being penalized.

The priest was being told you can't be a priest or a congressman.

So you can't do one or the other.

David A Cortman

Right.

Sonia Sotomayor

Here, there's nothing being taken away from.

David A Cortman

Sure.

It's the same public benefit.

You can't be both, run this -- operate this daycare as a religious organization and receive the public benefit.

Sonia Sotomayor

What do we do with discrimination for religion under your theory? Because the way you're going in your theory is an expansion of McDaniel; but putting aside that it's an expansion of McDaniel, what are we going to end up with when secular people say religious people are being discriminated in favor of and against us? If status should not be an effect on free exercise, what are we going to do with tax benefits?

David A Cortman

I think --

Sonia Sotomayor

What are we going to do with all the exemptions that churches receive?

David A Cortman

Sure.

Sonia Sotomayor

Those are benefits.

David A Cortman

Sure.

And I would say that the -- the clauses take care of that.

So, for example, if it goes too far and the government benefit is solely favoring religion, it's likely a violation of the Establishment Clause.

But we also have a --

Sonia Sotomayor

Well, there's plenty of people who would think tax exemption goes too far.

David A Cortman

Right.

Sonia Sotomayor

But I don't.

I'm just saying there are people who make that claim.

David A Cortman

Sure.

And the Court's already ruled on that.

And so on one side you have the Establishment Clause.

If you're going too far to favor religion, there's an Establishment Clause problem; but if you go the other side on the Free Exercise Clause, this Court has said for decades, sometimes we may and even must accommodate religion, and I think is the favorable treatment that Your Honor is talking about. But I think all the clauses work together in that route. If you take it too far, you do have an Establishment Clause problem. In this -- this case, it's considered there is no Establishment Clause problem, and -- and there is a point where you can accommodate religion, this other benefit, under the Free Exercise Clause, but I think they all balance out each other.

And in this particular case, it's not only McDaniel v. Paty, but McCauley specifically said that if you target religion on its -- on its face, which this policy does, then it's -- it's unconstitutional.

Samuel A. Alito, Jr.

And Mr. Cortman, I don't know whether we -- excuse me.

I don't know whether we need to get into the history of this particular amendment here.

I tend to think we don't need to, but at the beginning of the line of questioning that Justice Sotomayor just finished, she began with the suggestion that perhaps this amendment reflects an admirable historical tradition that should be respected. Do you think that that is the proper way to analyze this question?

David A Cortman

I don't.

And -- and this -- this particular provision that we're discussing, they are -- and this has been briefed by several amicus briefs and -- and briefly by us, is a product of what we would consider to be one of the Blaine Amendments that was not found in Locke v. Davey.

And the reason for that is, is it has that same language in the Blaine Amendment.

It was adopted the same exact year, and there is much history showing about the anti-Catholic bigotry that's behind this specific provision, and several members of this Court have opined on that before.

So I think it doesn't carry the same history as -- as this general Establishment Clause, not --

Sonia Sotomayor

There is a serious debate about that, isn't there?

David A Cortman

There is.

And that's why our argument is, is we believe it is one, but it -- it doesn't matter to the deciding of this case.

Stephen G. Breyer

Has the -- has the -- the State courts, have they ever said the amendment prevents the State from giving grants or from spending money on police protection for churches?

David A Cortman

They -- they have not, and --

Stephen G. Breyer

Have they ever said that it prevents the State from, say, having a -- a border guard, you know, crossing guards or fire protection? Or, let's say, health inspections?

David A Cortman

They have not.

Stephen G. Breyer

Okay.

David A Cortman

But what --

Stephen G. Breyer

In that case, why, just -- just like you and the other side to spend a minute on this, just a minute, why isn't the case moot? That is, we have a governor.

He said he's going to give you the grants.

He said that we know for four years this is going to recur anyway.

There's certainly -- of course, it could happen, somebody brings the case in the Supreme Court and they decide it differently in -- in -- in the State. But what case would you cite as closest to the proposition? This is not moot -- you didn't ask for money, did you?

David A Cortman

No.

Stephen G. Breyer

You just want an injunction for the future.

David A Cortman

Because of the 11th Amendment.

Stephen G. Breyer

And you're going to get that injunction, whether you want it or not, with the present governor.

David A Cortman

Possibly, and likely, temporarily.

Stephen G. Breyer

And that's -- well, temporarily.

Is there any chance he would change his mind?

David A Cortman

Yes.

Stephen G. Breyer

What?

David A Cortman

Well -- well, for -- if the political winds change, we have -- we have this policy by Facebook or press release.

So it can easily be changed back if political --

Stephen G. Breyer

No.

I see that. What case would you cite?

David A Cortman

I -- I -- excuse me.

I think the best two cases are Friends of the Earth and the Knox case.

Stephen G. Breyer

Okay.

David A Cortman

In fact, I think those cases are more difficult cases than --

Stephen G. Breyer

Okay.

Okay.

Fine.

David A Cortman

-- this case, because of the voluntary cessation proposition.

But I think that's --

Ruth Bader Ginsburg

There's two -- there's two questions, isn't there? One is we're talking about is the case moot, and I think, technically, it's not moot.

But if we think -- suppose Missouri had a policy that it has today, very recently, and we were asked to grant cert in this case.

That would be a factor in our decision whether we thought this was an appropriate case to review, wouldn't it?

David A Cortman

This case would have to be here, I guess, in a different posture, maybe coming from the other side, if that was already the policy.

I think one of the problems is, is that the original policy was based on the Missouri Supreme Court's interpretation. So what's interesting here is there's already talk that the new policy is immediately going to be go challenged, and likely struck down by the Missouri Supreme Court.

So absent a ruling here, the -- the old policy will be back in place.

And that's why it's important for the Court to rule because it's not -- this isn't a permanent change by any means.

It's a temporary change.

In fact, the government is -- is actually defending both the old policy and the new policy, which I think shows why this Court needs to issue a ruling. And -- but I think what's likely to happen under the Voluntary Cessation Doctrine, especially as this Court has said, we look at this with a -- a critical eye because of the 11th hour change, is the State free to return to its old ways? It clearly is, not only in this administration, but in the new lawsuit being brought to challenge the new policy, because it violates why we're here in the first place, is the Missouri State constitutional provision.

Elena Kagan

May I take you back to the substance, Mr. Cortman, unless anybody -- it's -- let's talk a little bit about federalism, and here's what I would like to know.

You know, usually when we see these funding cases, it comes in a different context.

It comes where the State wants to give money and somebody is objecting.

And this case comes in the converse way, where a State says we just don't want to fund --

David A Cortman

Right.

Elena Kagan

-- this institution.

And these -- these church/States divide, it's a -- it's a fraught issue.

It's a hard issue.

It's a -- it's an issue in which States have their own very longstanding law.

It's an issue on which I -- I guess I'm going to say nobody is completely sure that they have it right. And -- and so I guess there's something attractive about having some play in the joints where States can go their own way and make their own choices.

And why shouldn't this be one of those cases?

David A Cortman

Because I don't think this is one of the difficult cases.

In fact, I would say, with all the Court's jurisprudence under Free Exercise and Establishment Clause, this is actually one of the easier cases.

And the reason for that is if you look at the play in joints, the first conclusion was there was no Free Exercise violation there.

Here, there clearly is. If you look at the Court's case law under Sherbert and McDaniel and McCauley and Smith, this is clearly singling out a religious organization with no justification to do so.

So just having a Free Exercise violation takes it out of the play in the joints where there wasn't one there. I think the other thing is, if you're looking at the --

Elena Kagan

Well, that's, of course, true, that if there's a -- a constitutional right at stake, that trumps.

But the question is, how are we going to interpret the constitutional right? What are we -- so -- so I guess what I'm asking is, do you see value in the other side in having some flexibility here for States to make these sorts of choices?

David A Cortman

I think States have tremendous leeway in the way they set up and decide these types of programs.

And here's what I would say, which I think is an easy solution.

Number one, the State doesn't have to set up the program in the first place.

Number two, it could set it up in a way that said, we're only going to do government schools' playgrounds and not any private schools. But once it sets up the program to include all not-for-profits and all not-for-profit preschools, it sets out 16 different criteria, neutral criteria, that everyone has to comply with.

Then the question is, is -- when you have a -- a religious organization that meets those criteria; in fact, does better on them than almost everybody else, and then you look at the application and say, well, we just found out you're operated by a religious organization, we're going to take you back out of that, even though you meet the State's criteria and further our interest better than almost everybody else, that seems to be not a difficult --

Elena Kagan

But one last -- I know your white light is on.

But might the State think that here's the problem.

The problem is this church has come in with a very competitive application.

We want to give money to this church.

Let's say, you know, a Protestant church.

There's a Catholic church across the street. Catholic church applies, doesn't get money, this happens five years running.

And people start thinking, well, why is the Protestant church keeping on getting the money and the Catholic church never gets the money? And the State says, we just won't -- don't want to sow that kind of division, that kind of mistrust, that kind of -- well, that --

David A Cortman

Sure.

It sounds like a -- a reasonable observer question, but put that aside for a second.

If you know the history and context of the program, you would know that this is a competitive grant, and they actually should be religion blind. So if you're not looking at who is applying, you can grade this just like this application was graded highly, based on secular and neutral criteria.

So anyone knows that the program is purely religion blind, not looking at who's applying, they'll know that it's not favoring any religious organization or secular. But what you do when you favor -- when you remove the religious organizations, even though you've scored them high under your own competition, you're actually singling out for -- for a benefit they should otherwise get under Free Exercise. If I might save the rest of my time.

John G. Roberts, Jr.

Thank you, counsel. Mr. Layton.

James R. Layton

Mr. Chief Justice, and may it please the Court: Justice Alito asked the question as to whether this is an admirable tradition that should be respected, this 39-State tradition of have -- keeping hands off of religion, and the answer from the States' view is yes. In 1820, Missouri's first constitutional convention adopted from Jefferson's Virginia Statute for Religious Freedom the language that, "No man can be compelled to erect, support, or attend any place of worship." We modified that, made it more specific in the 1865 and 1875 constitutions.

And in 1945, it was reenacted in our latest constitution with reference back to the founding era. The -- the question, then, is whether that fits within this Court's jurisprudence under the First Amendment.

And there we look at both the Establishment Clause and the Free Exercise Clause, and the play between the joints that this Court confirmed or recognized in Locke v. Davey.

John G. Roberts, Jr.

Well, you don't want us -- you say we don't have to look at the Establishment Clause.

In your brief, you said there's no Establishment Clause problem here.

James R. Layton

No.

I -- we say that there is not an Establishment Clause violation.

Some of the amici on our site -- side say that there is, but no, that in the State's view, there is not an Establishment Clause violation.

And so Governor Greitens' decision to proceed differently does not violate the Establishment Clause. The question is whether that's the limit. There are Establishment Clause concerns here, even if there's not a violation.

And those concerns arise both with regard to endorsement and with regard to entanglement.

Anthony M. Kennedy

And is it your argument that this statute is valid to keep us away from close Establishment Clause questions?

James R. Layton

Yes.

Yes.

We don't want to be in a position, for example, in this case, 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.

Anthony M. Kennedy

But -- but this -- this is quite different than Locke, because this is a status-based statute.

James R. Layton

Well, in -- in that respect, it is different.

In other respects it's different as well. For example, in that case, we have independent decisionmaking, which has been key to many of this Court's decisions.

In this Court, the decisionmaking is not by some third party, it is by the State.

Samuel A. Alito, Jr.

Well, Mr. Layton, you said you don't want to -- you don't want to have a program that makes physical improvements to -- to churches.

And I just wanted to ask you about some Federal laws that are highlighted in the amicus brief filed by the Union of Orthodox Jewish Congregations, and get your reaction whether a program like that would be permissible under the Missouri constitution. So one of them is a Federal nonprofit security grant program providing grants through the Department of Homeland Security to harden -- harden nonprofit organization facilities that are deemed to be at high risk for terrorist attacks.

So if you have a -- a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?

James R. Layton

The answer traditionally -- and I'm not sure that I can speak for the current governor -- of course, I was brought back to argue this case and instructed I could defend the prior position, but the answer traditionally would be no.

State money could not be used to actually erect or -- or operate or provide that kind of physical addition to a -- to a church or synagogue.

Samuel A. Alito, Jr.

Okay.

Here's another one. I have two more, if you'll indulge me. This is a Federal program that provided grants for the repair of buildings near the Federal building in Oklahoma City that were damaged by the bombing there.

Would that be permitted?

James R. Layton

Under the traditional view of -- in the State of Missouri, it would not be permitted, provided that those were actually church buildings. Worship buildings.

Samuel A. Alito, Jr.

Okay.

Last one.

This is a New York City program that provides security -- money for security enhancements at schools where there's fear of shooting or other school violence.

James R. Layton

Again, under the traditional view in Missouri, if -- if this was actually a cash grant, money leaving the public treasury to go to a church, it would not be permissible. Now, that doesn't mean that a religious-affiliated school could not qualify.

The St. Louis University case by the Missouri Supreme Court shows that the Missouri courts have been willing to draw the definition of churches and religious institutions pretty narrowly.

Samuel A. Alito, Jr.

So what is the definition of a church? So a religiously-affiliated school is not a church under the -- under the Missouri constitution?

James R. Layton

The decision with regard to St. Louis University was that even though it is a Jesuit institution that is founded by Jesuits, had a Jesuit president and Jesuits on its board, since it had a self-perpetuating board, even though it declared a -- a Jesuit philosophy, it was determined to be eligible to receive -- in that instance not direct payment from the State, but eligible to receive State funds.

Samuel A. Alito, Jr.

But why --

Elena Kagan

Mr. Layton --

Samuel A. Alito, Jr.

Why would that be so?

James R. Layton

I suspect because the Missouri courts are trying to provide as much assistance as they can within the realm that they feel that the Missouri constitution permits.

Samuel A. Alito, Jr.

Oh.

So suppose you -- we have the -- a school that's run by the Trinity Lutheran Church of Columbia.

And then next to it we have a -- a Jesuit elementary and secondary school.

One would be eligible, one would not be eligible?

James R. Layton

It would depend on the nature of the two.

In fact, if the Trinity Lutheran went back to the position it was in in 1985 where the preschool was an independent, although somewhat affiliated, entity using the church's facilities, presumably under some kind of a lease arrangement, the State likely would have said yes, because that would be consistent --

Samuel A. Alito, Jr.

But even though they're equally controlled by a religious organizations?

James R. Layton

No.

I don't think -- I -- it would be a fine line in terms of the control.

But no, if the organization itself, the church itself rather than the self-perpetuating board, such as with St. Louis University, controlled the -- the preschool, that -- that is what has made the difference in Missouri in the past, although understand, we have very few cases in Missouri that have addressed these questions.

Elena Kagan

Mr. Layton, could we go back to where Justice Alito started --

James R. Layton

Yes.

Elena Kagan

-- and -- and you said no money to churches.

Why can the State provide police protection or fire protection?

James R. Layton

Well, the -- the -- the State does, and I think for a couple of reasons.

One is that we are not actually taking money from the State treasury and giving it to the church.

And this Court has seldom, if ever, actually said it's okay to write a check from the public treasury to a church.

So this -- we're providing a service.

And the service there is not being provided solely for the benefit of the church.

The service is being provided for police and fire for the benefit of the public safety --

Stephen G. Breyer

Yeah, but the whole -- that's easy to change.

I mean, we imagine a State, State X.

And State X says, we're not going to provide police protection.

We will for everybody, but not a church.

And by the way, that costs us extra money.

We have to hire extra policemen -- revoke. Okay? That's all.

Why not?

James R. Layton

That --

Stephen G. Breyer

We don't want -- we don't -- we don't want to because they're a church. That's why not. Same with fire protection.

Same with vaccination programs.

Same with public health.

Same with helping children who get sick at school.

Okay? You know, the hypotheticals are obvious.

Nothing to do with Missouri.

But as soon as you answer that, I'll be able to know that ask you a question and how does this differ.

Okay?

James R. Layton

Well, this -- this differs --

Stephen G. Breyer

No, I'm not asking that yet. (Laughter.)

James R. Layton

So what -- what are you asking first?

Stephen G. Breyer

I'm asking -- (Laughter.)

Stephen G. Breyer

I'm asking, does the Constitution of the United States permit a State or a city to say, we give everybody in this city police protection, but not churches? We give everybody fire protection, but let the church burn down.

We give everybody public health protection, but not a church. That's -- that's the law in my imaginary State. And I'm saying, does the Constitution, which guarantees free exercise of religion, permit such laws?

James R. Layton

I -- I am not going to take the position that it permits those laws --

Stephen G. Breyer

All right.

Now you say no, it does not permit those laws.

Very well. 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, et cetera? What's the difference?

James R. Layton

The difference is that the establishment concerns that motivate Missouri's policy do not apply in the police and fire context, but they apply here.

Stephen G. Breyer

Why in health context? So if there's --

James R. Layton

No.

Stephen G. Breyer

-- an epidemic?

James R. Layton

No, I don't know that they apply in health context.

Because the kind of examples Your Honor is giving are examples where the -- the benefits are universal.

They are not selective, which they are here; they are universal. So we start on the endorsement side.

In those instances, the State is not endorsing a particular church by choosing to provide that church with those benefits and not another church, which is --

Elena Kagan

Mr. Layton, I understand that --

John G. Roberts, Jr.

The Establishment Clause -- the -- the entire basis for your rule is that you're afraid of violating the Establishment Clause, even though you're sure there's no violation of the Establishment Clause?

James R. Layton

No.

I -- it -- it is that we do not want to come to the edge of violating the Establishment Clause.

I mean, we are not taking the position that we would by doing this, but the question --

John G. Roberts, Jr.

No, you take the position that it is not, that this is not a violation --

James R. Layton

It is not a violation.

John G. Roberts, Jr.

-- Establishment Clause violation.

James R. Layton

The question is, do we have to come all the way to the edge of a violation, which is what I think Petitioners are arguing.

Stephen G. Breyer

Yeah, I --

James R. Layton

But it -- that it -- that as long as we aren't violating, there is no room between.

Elena Kagan

So, Mr. Layton, let's say I -- I accept that the State might have an interest in saying we just don't want to be seen as giving money to one church and not another in these selective programs.

James R. Layton

And that's the endorsement side.

There's also entanglement.

Anthony M. Kennedy

Yes.

I --

Elena Kagan

I -- I think that that's legitimate. But here's the thing.

There's a constitutional principle.

It's as strong as any constitutional principle that there is, that when we have a program of funding -- and here we're funding playground surfaces -- that everybody is entitled to that funding, to -- to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things.

As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things. And I would have thought that that's a pretty strong principle in our constitutional law.

And how is that the State says that that's not violated here?

James R. Layton

Well, let me react to the way that you set that out.

If we're only going to look at the rubber, then what Your Honor asks does make sense. But the rubber doesn't have any meaning until it's placed there and is available for use.

And under this theory, we not only have to put rubber on playgrounds, but don't we have to put new paint on the sanctuary if the old one had lead paint? Don't we have to put -- pay -- reimburse for pews to be upholstered? I mean, what -- what is the --

John G. Roberts, Jr.

Not -- maybe not --

Elena Kagan

I think --

John G. Roberts, Jr.

-- not under -- not under Locke, right? Locke drew a distinction between assistance for devotional, theological education and scholarship and others.

James R. Layton

It did.

John G. Roberts, Jr.

So perhaps -- I mean, maybe you'd have a good argument.

Or on the other hand, maybe if you painted the interior of all sorts of other buildings but singled out religious, I don't know. But it seems to me that that's -- raises much more serious problems than this case.

James R. Layton

I don't think that Locke raise -- I think that this case raises more serious problems than Locke in a number of respects.

It is a direct payment to a church.

It's not an indirect payment chosen by someone else.

It is not available to everyone.

It's only available to those who are selected that --

Elena Kagan

But here's the deal.

You're right that this is a selective program.

It's not a general program in which everybody gets money.

But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things.

Even though they're not -- they could -- they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you -- you can't get the money.

James R. Layton

Well, they -- they could, but that still doesn't get us out of the entanglement issues here.

We have a church that, in order to participate, has to agree to curriculum requirements in their preschool.

The idea that the government is going to dictate what is taught at a church, even if they're willing to accept it, which they are here, is anathema to the Establishment Clause considerations that have highlighted many of these questions --

Stephen G. Breyer

You suggested two lines. I'm back to my question --

James R. Layton

Yes.

Stephen G. Breyer

-- which is really quite similar to what Justice Kagan is asking.

You -- once you accepted the first part of what I asked, you agree there has to be a line.

James R. Layton

Yes.

Stephen G. Breyer

Now, one line you've suggested is the question that you're selecting rather than giving to any -- everyone.

James R. Layton

Universal versus select.

Stephen G. Breyer

But would you say the same case, were you to give the money to all schools instead of just some by selection, then would be unconstitutional barring churches? I don't think you would.

But wait.

Say the other line. The other line, which I want you to contrast, is that where there is a grant given to all schools, private and public, and the purpose -- and that grant has nothing to do with religious practice, but it does -- has to do with health or safety.

Then you have to do it.

What about that?

James R. Layton

Well, that's --

Stephen G. Breyer

That's -- that's -- because you win -- you lose -- or you win on the first; you lose on the second.

James R. Layton

That -- that is --

Stephen G. Breyer

Now, they are two competing lines that I'm at least seeing.

Maybe there's some others.

James R. Layton

If the sole benefit to the church and its members was health and safety and we could draw that line, that may make some sense.

But, of course, that's not true here.

It's -- it's more than that here.

What we are being asked to give to this church is actually a visible improvement in their physical plant.

And understand that this is a church that declares in their petition that they use this preschool to bring the gospel message to nonmembers. This is --

John G. Roberts, Jr.

So it's -- it's not -- now your line is the benefit, if the benefit is physical, that's okay; but if it's not, it's not?

James R. Layton

No.

I'm saying --

John G. Roberts, Jr.

Well, what is your issue? Your -- your answer said the -- the issue here is that it's the physical area near the church.

James R. Layton

No.

I'm saying that -- that even physical changes, even if they have a safety element, may still have an entanglement problem. Because we are saying to the church, you -- you have this now incentive to rearrange your property, your church site, in order to maximize the amount you get from the State rather than maximizing the spiritual development of the children.

John G. Roberts, Jr.

What if you had a program at the -- the State capital? You had tours for school groups, and you had someone who, you know, coordinated, tied it into the social studies program; school groups can come in, but no religious schools. Is that okay?

James R. Layton

I don't know that it would be. We don't know who -- we -- we -- frankly, we have tours like that, and we --

John G. Roberts, Jr.

You have to have a position.

And -- and it seems to me that if you can't answer the question whether or not you could prohibit tours for religious schools while allowing tours for other schools, I don't understand the basis of your program -- your position.

James R. Layton

The -- the tours, at least in our experience, are also universal.

Everyone who comes to the capital gets a tour.

And so --

John G. Roberts, Jr.

Well --

James R. Layton

-- we would be -- in terms of universal versus selective, we would be in that same range.

But also with regard to entanglement, the tours do not require the State to be entangled in any way with the church and its ministry.

And the playground improvement here does require that, not just as to curriculum, but as to the manner in which this is done, and the way in which it is portrayed to the community. That's the kind of entanglement that --

John G. Roberts, Jr.

What -- what do you mean, "the way it is portrayed to the community"?

James R. Layton

Well, among other things, in -- in this particular program, the church gets points for telling people in the community that the State paid for this improvement to their church.

And so the -- in essence, it -- it exacerbates the endorsement problem by telling them what they have to say publicly about this particular improvement.

Anthony M. Kennedy

I mean, you could say the same thing, that -- that the church is delighted that it has fire protection.

James R. Layton

Well, I -- I suppose if we said -- (Laughter.)

James R. Layton

-- we're only going to provide fire protection to churches that will declare publicly that they appreciate the States providing that, maybe; but, again, that's not selective.

And so that -- that statement by the church has no meaning.

It -- it can't be perceived as an endorsement.

But when I drive past this church and this church has this beautiful new playground surface that the State paid for, I am receiving a message with regard to the State in this particular regard.

Samuel A. Alito, Jr.

And -- and so long as the money is granted based on neutral criteria that are faithfully applied, I don't know how you can draw a distinction between a program that's open to everybody and a selective program. I mean, suppose Missouri offered 50 full college scholarships every year to students who achieved certain academic criteria -- who satisfied certain academic criteria, and this was open to public school students and private school students.

But, you know, after a few years, the school saw -- the State saw that a disproportionate number of these were going -- among those given to the religiously affiliate, to the private schools, a disproportionate were -- a number of the scholarships were going to students at schools that are affiliated with a particular faith. Would it be, then, justified to say, well, we better not -- we better disqualify every student who went to a religiously affiliated school so there aren't any hard feelings?

James R. Layton

Well, I think that may be an Equal Protection problem, because I don't know what the -- the basis for that would be.

Samuel A. Alito, Jr.

So what's the difference between that situation and this situation --

James R. Layton

Well, here, it's --

Samuel A. Alito, Jr.

-- as far as the difference between selective and nonselective?

James R. Layton

If we're going to deal with the Equal Protection approach to this, then the question becomes whether our endorsement and entanglement concerns are a rational basis.

Samuel A. Alito, Jr.

No.

I'm not talking about equal protection.

You -- you said there's -- that it matters that this is selective as opposed to not selective.

James R. Layton

Yes.

Samuel A. Alito, Jr.

And what is the basis for drawing that distinction? I thought that -- I thought your asserted basis was it prevents the perception of favoritism.

James R. Layton

Yes, it -- it does.

Because this is a very selective program, very few institutions get it.

And unlike the scholarship example or, frankly, the example in Locke v. Davey, it is a publicly visible manifest demonstration of State endorsement.

Elena Kagan

But I don't understand -- I -- I think I understand how the States' interests might differ some, but essentially this is a program open to everyone.

Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.

James R. Layton

And that is what we are doing, because we are concerned about the endorsement and entanglement issues that arise in connection with this type of a program.

Elena Kagan

Yes.

And those are interests.

I don't mean to say that those are not valid interests.

But it does seem as though this is a clear burden -- looked at that way, this is a clear burden on a constitutional right.

And then your interests have to rise to an extremely high level.

James R. Layton

Well, I don't know that I -- I --

Elena Kagan

It's a burden on constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit.

James R. Layton

Well, this -- this is -- it's not like McDaniel where someone is being barred from participating in -- in the life of the -- the community. This is a -- kind of the opposite of that.

It is not like the -- what we have in Locke, in the sense that -- that here we have -- we -- we really have a -- a direct payment to a church. I'm not sure -- I'm not sure I'm answering your question, Your Honor.

Sonia Sotomayor

Mr. Cortman -- I'm sorry. Mr. Layton, I'm -- I'm -- I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I -- I am worried about the, if not the mootness, the adversity in this case.

If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?

James R. Layton

Well, I don't know the answer to that -- that, but let me -- let me give some of the factual background here. The Attorney General himself is recused because he actually appears on one of the briefs on the other side.

The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor -- the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.

Sonia Sotomayor

Well, but that's the question.

It doesn't appear to be the position of the State right now.

Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.

James R. Layton

So -- so let me talk about what has happened and what -- what happens next. After the governor did -- made his announcement, the director, who is my client here, in fact, put up on her website the 2017 application and 2017 instructions, in which she largely tracked the 2016 and prior ones, including 2012 that the Court has, but eliminated all reference to churches, religious instruction; all of those were eliminated. That's all I know about what she intends to do, because I don't represent her with regard to that decision.

Sonia Sotomayor

I'm asking a simple question.

If she -- if the State and she as the representative of the State are not willing to fight this case, are they manufacturing adversity by appointing you?

James R. Layton

So -- well --

Sonia Sotomayor

If we have no adversity, hasn't this case become mooted?

James R. Layton

So let me -- let me tell you what happens next if the director actually grants -- issues a grant to a church. If she does, then under Missouri's liberal taxpayer standing rules, someone can then sue and say you are violating the State constitution.

And if there is a determination that -- that she was filing in the State constitution, then the question before the -- the Court today would have to be answered.

Sonia Sotomayor

All right.

John G. Roberts, Jr.

You -- do you agree that this -- this Court's voluntary cessation policies apply to the mootness question?

James R. Layton

I agree that they can apply to this.

It's not a perfect fit compared to some of the precedents, but -- but certainly there is no assurance that four years from now, with a change of administration, or at some point in the interim through a taxpayer standing suit, that there wouldn't be a -- a change back to the prior practice.

Neil Gorsuch

Mr. Layton, I'm struggling still to understand Justice Kagan's question, the answer to it. How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs, first? And second, how do we tell the difference between the two, if that's the line we're going to draw? The tours, isn't it selective based on who can show up at the Capitol and afford to do that? Public benefit programs, aren't they often selective if you meet criteria? Copyright laws? You have to have an original work, things like that.

What do we do about those problems?

James R. Layton

Well, I -- I still maintain my position that when we have a -- a -- a case where it is a selective program that is publicly announced, publicly visible, that that is different from these other kind of programs.

Neil Gorsuch

But how do we draw the line between selective and general? One -- one could seem to play with that line forever.

James R. Layton

Well, one could, just like the rest of the lines in this case.

We don't get a -- a fine line --

Neil Gorsuch

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

We know that's happened in this case, right?

James R. Layton

We do know that the decision here was made because it was a church.

And assuming that's what "status" means, then I -- I suppose we -- we know that.

I mean, that's true.

Stephen G. Breyer

If you -- if you make that the line, selective versus universal, if you like, you can reproduce the same problems.

Volunteer fire departments, most places that the State give grants to upgrade -- upgrade.

We don't have enough money, so we have a selection. Same with police.

You have crossing guards. You know, you have dangerous intersections.

There are crossing guards.

We have grants to help the schools pay for the children. Do the same thing with health of children. You know, I can do that.

That's what I see as a difficulty, we choose your line there, and we proliferate litigation forever.

James R. Layton

I -- let me make --

Stephen G. Breyer

In areas that are critical, like police, fire, health.

James R. Layton

Police, fire, and health, when they are universal.

But you gave the crossing guard example --

Stephen G. Breyer

Yeah, I --

James R. Layton

-- and in Missouri, that's not -- that's not universal.

Stephen G. Breyer

Of course.

That's my problem.

I can reproduce programs in the State that seem absolutely necessary for police protection, fire protection, health of children.

And it seems like an irrelevant factor, whether they're just open to everybody to apply and you automatically get it, or whether you have criteria and are selected because you have a limited amount of money.

And you want to make that line the --

James R. Layton

Well --

Stephen G. Breyer

-- constitutional line on Free Exercise? I'm afraid of that one.

Now, I put that out, so you can reply.

James R. Layton

Well, the -- and -- and the answer would be that the line is some combination.

And I -- I can't give you a bright line, because you're rejecting the bright line that we have.

Some kind of combination of the endorsement problems with selectivity, and the entanglement problems that come when we're dealing with grant programs that actually affect the physical plant of a church and how that plant is used in a preschool or otherwise. There is no way for the State to comply with the -- its determination, maybe the requirement, that we police the use of the funds and what the funds here put on there without becoming involved with the church. There's a statement in the -- the Appellant's brief that says that the church is told that it can't participate in the life of the community, but what Trinity wants is to have the community participate in the life of the church.

And that is anathema to the kind of basic doctrines that we get out of the founding era that provided for a division --

Neil Gorsuch

Imagine, why would it be on the basis of a physical plant, as opposed to, say, personnel or nonphysical grant money?

James R. Layton

Why -- why wouldn't what be?

Neil Gorsuch

Now the line is moving. Now it's apparently on the basis of whether we're granting the money to physical plant or to some other purpose.

What is that --

James R. Layton

Well, no, I -- I'm saying that the physical plant is our case, because the physical plant is a -- a -- an improvement to the church property that the church will use and may use for actually proselytizing and not just use it for religious activities. And wherever the line is, that ought to be on the other side of the line, just like wherever the line is, writing a check that says payable to Trinity Lutheran Church ought to be on the other side of the line. Thank you.

John G. Roberts, Jr.

Thank you, Mr. Layton. Mr. Cortman, you have three minutes remaining.

David A Cortman

Thank you, Mr. Chief Justice. Just three points in rebuttal. First of all, as to the endorsement problem, I think the neutral government criteria here take care of the endorsement problem.

So when you have this competitive grant that you have to fill out this -- this pretty complicated application, 16 neutral criteria, there is no endorsement of religion.

I think the free speech cases give a good analogue to that. Number 2, as far as the selective or universal government benefit program, I don't think that is really the test here.

And the reason, as Your Honors mention, if this was open to all schools, and it was universal, they still would be prohibited from giving a grant to a religious organization.

So whether it's a narrow class of all non-for-profits, or a broader class of all schools, they would still not be able to fund based on their constitution. And lastly, as we talk about entanglement, this is not an entanglement issue.

Entanglement generally is an ongoing, intrusive surveillance.

It's not a one-time grant where you have to show a receipt for the expense to receive the reimbursement. If there are no other questions, I yield my time.

John G. Roberts, Jr.

Thank you, counsel. The case is submitted.