Right before the Easter weekend, the Trump Administration celebrated the swearing-in of Neil Gorsuch as an Associate Justice of the U.S. Supreme Court. His wife Louise stood by his side as Gorsuch repeated the oath of office given by Justice Anthony Kennedy, whom the Colorado judge served previously as law clerk.
Gorsuch takes office just in time to weigh in on a case affecting every church and faith-based nonprofit in America: Trinity Lutheran Church v. Comer. Attorneys for the church and the state of Missouri will face off at the Supreme Court on April 19.
On the day of Justice Gorsuch’s confirmation, the Religious Freedom Center at the Newseum in Washington, D.C. hosted a moot court, as attorneys from both Alliance Defending Freedom (ADF) and the American Civil Liberties Union (ACLU) offered their best arguments for and against the church’s legal claims.
1. It started when a church got involved in improving its neighborhood.
Known for its decades of charitable giving and community service, Trinity Lutheran Church operates a Child Learning Center as part of its ministry in one of the highest-poverty areas in Columbia, Missouri.
Their center includes a playground where both enrolled and neighborhood kids come to play. In 2012, the church applied for a state program that uses recycled tires to resurface playgrounds. Judged on an impartial scale by the state, the learning center ranked high for its need and, by all appearances, would receive a grant.
2. Missouri applied a different standard to the church than to other day cares.
Citing the Missouri Constitution—which says in part: “No money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion”—the state agency refused to reimburse the church through the recycling program.
In 2013, Alliance Defending Freedom filed a lawsuit against the state agency now headed by Carol Comer—claiming the church faced status discrimination. Though two lower courts denied the church’s claims, the Supreme Court has agreed to hear the case.
3. Key questions hinge on whether religious activity happens on a children’s playground.
“The church has every right to spread the Gospel to the surrounding community and make capital improvements to its facility,” stated ACLU attorney Daniel Mach at the moot court. “But it does not have the right to insist that taxpayers foot the bill for it.”
ADF attorney Erik Stanley countered that, “Rubber on a playground has no religious content. The church should not be quarantined from receiving public benefits, as the Supreme Court stated in Locke v. Davey.”
In response the ACLU attorney stretched his case farther, claiming: “Down the road, the church could use this playground for… its Bible school and religious instruction.” A former day care worker in attendance wondered: “Does the ACLU really think young children are doing anything but playing on a playground?”
4. Justice Neil Gorsuch joins a Supreme Court that is ideologically divided.
With a decade of opinions showing his reliance on core American principles of equal justice under law, Gorsuch may prove to be a worthy successor of the late Antonin Scalia—a judge whom both sides admit altered American jurisprudence by insisting court decisions adhere to the text of the Constitution.
Yet the four reliably liberal Justices will present challenges for the views Gorsuch holds, along with the “swing vote”: his former boss, Justice Kennedy.
Writing in the Washington Post, Professor Branden Bartels of George Washington University discusses how the Supreme Court became evenly divided: “Solidified liberal and conservative coalitions ‘sorted’ the Court by party for the first time in 2010, and produced the most polarized Court in history,”
5. Past cases reveal Gorsuch has deep understanding of religious liberty issues.
During his tenure with the 10th Circuit Court of Appeals, Gorsuch ruled on several prominent religious liberty cases including Hobby Lobby and Little Sisters of the Poor—and his legal interpretations were often reaffirmed by the Supreme Court.
“Judge Gorsuch has a very impressive record in favor of religious liberty—and against a hyper-expansive reading of the Establishment Clause that would exclude religion from the public square,” states Ed Whelan, a former law clerk for Justice Scalia who now serves as President of the Ethics and Public Policy Center
As he reads furiously to fully consider the case details, one thing is certain: Justice Neil Gorsuch is keenly aware that addressing religious liberty has implications far beyond one small town in Missouri. Liberty, religious neutrality, and states rights are big issues for a playground.
Josh M. Shepherd, contributor to Christian Headlines, has served on staff at The Heritage Foundation, Focus on the Family and Bound4LIFE International. He earned a degree in Business Marketing from the University of Colorado. Josh and his wife Terri live in the Washington, D.C. area. Follow Josh on Twitter @joshMshep.
Photo: Photo: Judge Neil Gorsuch testifies during the third day of his Supreme Court confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill, March 22, 2017 in Washington. Gorsuch was nominated by President Donald Trump to fill the vacancy left on the court by the February 2016 death of Associate Justice Antonin Scalia.
Photo courtesy: Justin Sullivan/Getty Images
Publication date: April 12, 2017
