Arguments in a high-profile religious liberty case caused tempers to flare on both sides of the Supreme Court’s ideological divide Wednesday.
The high court waited for several months to hear Trinity Lutheran Church of Columbia v. Comer, and did so with a full nine-justice court bolstered by the addition of Justice Neil Gorsuch, who joined the court this month. At issue in Trinity Lutheran is whether Missouri violated the Constitution in its decision to bar a church-operated daycare and preschool from a state program that provides funding to nonprofits to resurface playgrounds. Missouri’s Constitution includes a provision that prevents public funds from directly or indirectly assisting any church, sect or religion.
Justice Anthony Kennedy, for whom Gorsuch formerly clerked, kicked off questioning at the oral arguments without providing many signals about how he might decide. Kennedy asked David Cortman, the lawyer for Trinity Lutheran Church, whether there are any “instances when religious status can be used to deny benefits” from the government.
Before Cortman could finish answering that he could not think of any such example, the court’s left-leaning justices pounced. Justice Ruth Bader Ginsburg interrupted first, followed by Justice Sonia Sotomayor.
“I believe the playground is part of the ministry” of the church, Sotomayor said, expresssing concern that the preschool might choose to provide religious instruction to the children “outside on a sunny day” on the playground resurfaced with government funding.
Sotomayor noted that nearly 40 states had provisions in their state constitutions similar to Missouri’s and lauded the provisions as part of the nation’s tradition of not funding religious institutions.
“You say this affects free exercise [of religion], you seem to be confusing money with free exercise,” Sotomayor told Cortman. “I’m not sure how this is a free exercise question.”
Justice Samuel Alito soon after interjected and called out Sotomayor by name, prompting the equivalent of an intellectual food fight. Alito asked Cortman whether he agreed with Sotomayor’s suggestion that the Missouri Constitution’s provision prohibiting direct or indirect funding to churches represented an “admirable tradition,” which gave Cortman the opportunity to talk about the provision’s roots in “anti-Catholic bigotry.”
Sotomayor immediately responded to the allegations of anti-Catholic bigotry motivating the provision by saying, “There’s a serious debate about that.” The court’s left-leaning justices did not rush to Sotomayor’s defense, and material previewing the case provided by the Supreme Court asserts that provisions such as Missouri’s “were born out of anti-Catholic animosity in the 19th century.”
Sotomayor did, however, have an ally in the opposing counsel, James Layton, who represented Carol Comer, head of Missouri’s Department of Natural Resources.
“Justice Alito asked whether this is an admirable tradition … and the state’s answer is yes,” Layton began.
Alito questioned Layton at length with hypothetical examples from friend of the court briefs to see where Layton drew the line on who may receive government funding. Alito asked whether Missouri would approve of synagogues or mosques at risk as targets of terrorism receiving Department of Homeland Security grants to have security mechanisms in place akin to those at the high court. Layton answered “no.”
Layton’s answer drew skeptical questions from Justices Elena Kagan and Stephen Breyer, who asked how police and fire department services are provided to protect churches.
Perhaps sensing that the court was not moving firmly toward her corner, Sotomayor then questioned whether newly elected Missouri Attorney General Josh Hawley, a Republican, was “manufacturing adversity” by allowing the case to proceed even after the governor had changed how the state views the program. Layton replied by detailing how he presumed the same controversy likely would return to the court in the future regardless of the newly elected officials’ action.
The timing of Sotomayor’s question on whether the case was “moot” was revealing. When Breyer questioned Cortman, Trinity Lutheran’s counsel, about the new governor’s action, Sotomayor did not raise any questions. Cortman explained that the new governor’s policy came by “Facebook or press release” and was subject to change as the political winds do. Only when Layton neared the end of his arguments did Sotomayor choose to ask why the case was at the Supreme Court.
As several of the justices talked over one another to ask questions, Gorsuch sat silent — a mirror of Justice Clarence Thomas — throughout much of the day’s proceedings. Gorsuch was the last justice to ask a question. In asking questions of Layton, Gorsuch pursued a line of questioning brought by Kagan and asked why Missouri’s discrimination against the church in a selective government public-benefit program was “better” than discrimination in a general public-benefit program.
Layton talked at length about Missouri’s concerns about endorsement and entanglement because of the Trinity Lutheran Church’s religious affiliation.
This post originally appeared on Washington Examiner