The Supreme Court holds the view, dating all the way back to George Washington’s time, that it will not give legal advice, but will only decide lawsuits that involve a live controversy. That is the way it interprets the power given to it by the Constitution’s Article III.
On Friday afternoon, the court raised the prospect that it may not have the authority to decide one of the most important cases of the current term: a major constitutional dispute on religion-government relations. It sent a letter to lawyers on both sides of the case, Trinity Lutheran Church v. Comer, asking them to react to a policy change by the new governor of Missouri, offering religious groups’ access to government aid programs.
Up to yesterday, the state took the view that any program that provided any kind of state financial aid to churches or church-affiliated groups was barred by the Missouri state constitution, which has a quite strict church-state separation mandate. The key question in the case is whether it violates the federal Constitution to deny religious organizations equal access to state benefits that have nothing to do with religion.
That issue is raised in an appeal by a Columbia, Mo., church, Trinity Lutheran, claiming that it was discriminated against when it was denied a chance to participate in a state program that turns used tires into surface materials for school playgrounds. Schools compete for a limited number of grants. The Columbia church’s application ranked high, but was then rejected on the premise that it was ineligible as a church.
The nine Justices, including the newest, Justice Neil M. Gorsuch, are scheduled to hold a one-hour hearing on that case next Wednesday morning. For now, that is still scheduled, but that could be reconsidered after the lawyers file their replies – due by noon next Tuesday.
Missouri Governor Eric R. Greitens, a Republican elected last November, announced on Thursday that he was changing state policy to permit religious organizations to apply to take part in the playground surfacing grant program.
“Before we came into office,” the governor’s statement said, “government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids. That’s just wrong.”
If the Supreme Court takes the position that the governor is able to change policy, and concludes that the Columbia church could newly apply for a grant for a rubberized surface for its school playground, the court could conclude that the case no longer presents a live controversy under Article III. If so, it would probably have to dismiss the case, although it might go ahead with the hearing and explore the Article III question then.
When Trinity Lutheran first filed its lawsuit in January 2013 against the denial of its application, it specifically said it “desires to participate in future grants from the Missouri Department of Natural Resources, including future Scrap Tire Programs.”
In fact, that state agency on Friday updated its website to announce that it is has just opened a new “grant cycle” for the playground surfacing program. The application form shown on that website says explicitly that private schools are eligible to apply. The form says nothing about excluding a religious school from eligibility.
The church’s lawsuit sought only a ruling that its federal constitutional right to equality in non-religious public programs had been violated, and a court order to the state agency to stop that kind of discrimination. It did not ask for money damages for the denial – a request that, if it had been made, might keep the case alive without regard to its chances for a future application.
The court takes a fairly firm view about limitations on its authority to decide cases brought to it. In recent years, it has tightened significantly the requirement that an individual or company or association can only sue in federal courts if they can show that they will be directly harmed by the wrong they claim has been committed.
But the court has been even more committed, throughout its history, to deciding only cases in which real legal interests are at stake. That is based on its interpretation that Article III’s grant of authority to decide only a “case or controversy” operates as a flat bar to issuing advisory opinions. That tradition began with a polite refusal by the court, in 1793, to give President Washington legal advice about the legal meaning of a treaty.
While different Justices often take differing views on how strict to insist upon proof of injury as a minimum requirement for Article III jurisdiction, none of them has thought the court could simply dispense legal advice, apart from a genuine lawsuit.
If the court now finds that it cannot decide the Trinity Lutheran case, that will be a disappointment for at least two reasons: first, because it was a highlight of a court term in which an eight-Justice court has felt it had to shy away from major controversy while it was still short one member, so it has accepted a good many technical, low-impact cases, and, second, because it was going to provide a test case for where Neil Gorsuch stands as a Justice on religious freedom because his prior views on that broad topic generated some of the strongest challenges to his nomination to the court.
One other high-profile case that the court had been preparing to decide this term has already dropped off of its docket. That case posed, for the first time, a test of the Justices’ view on the latest civil rights movement controversy, on the scope of legal equality for transgender people. A Virginia case involving the rights at school of a transgender boy was sent by the court back to a lower court to assess the meaning of a change in federal policy on that broad question by the new Trump Administration.