UPDATED Tuesday 3:28 p.m. The hearing on the case will go forward at 10 a.m. Wednesday, but at least part of the focus of the discussion will be on whether it will proceed to a decision on the church’s claim, lawyers involved said. The court has made no announcement of a change in the previously released calendar for the day.
The Supreme Court at noon on Tuesday began studying a variety of sometimes conflicting suggestions — offered by lawyers at t, he court’s request — on what it should do with a major religion-and-government case.. At issue, basically, is whether the court even has the authority to decide the case, and whether it should go .ahead with a scheduled hearing on it on Wednesday.
The legal status of the case of Trinity Lutheran Church v. Comer has been cast into doubt by a change of state policy in Missouri on eligibility of churches to take part equally in a program of state-provided benefits that have nothing directly to do with religion.
The church took the case to the Supreme Court after a state agency refused to allow the church to take part in a program that provides financial grants to obtain material made from used tires to create surfaces for school playgrounds. Trinity Lutheran otherwise qualified, but was turned down solely because it is a church, and the Missouri state constitution bans any form of financial aid to religious organizations.
Last week, Missouri’s new governor, Eric R. Greitens, ordered state agencies to no longer exclude churches and other religious organizations from state programs like the scrap tires grant program.
Replying to a Supreme Court request for their reaction, lawyers for the church and for the state government argued in separate letters that the case has not become legally dead (“moot”) because there is no assurance that the policy could not shift back in the future, and the church might again be shut out.
The church, both letters said, filed its lawsuit to ensure access to the program and claimed injury from the past denial, so it might face harm again in the future. The church’s counsel said that the state had vigorously defended its policy over the past four years, and that, too, was a sign that the church has no future assurance of eligibility.
The state, however, notified the court in its letter that it would not be defending the former policy before the Justices, but will rely instead upon a private lawyer, because the state may have to defend the governor’s new policy in the event that a church should qualify for a future grant from the state, and that were challenged in a court as a violation of the state constitution’s ban on such aid.
The stand-in private lawyer is prepared to defend the past denial of Trinity Lutheran’s application before the Justices, the state’s letter said. He already had been planning to do that in an official capacity, but will now be doing so in a private capacity, that letter said.
Both of those letters anticipated that there would likely be a future lawsuit if the state agency were to make a grant to a church in the future, with the lawsuit based on the state constitution.
One of the curious aspects of the Trinity Lutheran case is that the church’s ultimate legal complaint is the provision in the Missouri state constitution against handing out state funds to religious entities, but the church has never challenged the validity of that ban. Its only complaint, it has stressed, is with a state agency’s application of that ban to Trinity Lutheran, alone.
If the Supreme Court were to go forward with the case and ultimately rule in Trinity Lutheran’s favor, it might have to weigh the validity under the federal Constitution of the state constitution’s ban, even though that question is not directly before the court in the church’s appeal.
In the state’s letter, while contending that the case should go forward before the Justices, it did suggest that the court might decide that the case is now moot. In that event, the state’s lawyers said, they should send the case back to lower courts to dismiss the church’s lawsuit and throw out the lower court rulings upholding the denial of access to the scrap tire program..
The Justices began reviewing the two responses at midday, as they left the bench following the day’s oral arguments. In early afternoon, there was no indication when the court’s members might decide what to do next.
Even though there is a possibility that the case would become a legal dead-letter, the Justices still could hold the Wednesday hearing and explore the jurisdiction question at that time. If a federal court concludes that a case is moot, that means that it has lost jurisdiction to decide, but nevertheless it still has the authority to consider that question as a preliminary issue to proceeding further.
Two organizations that have been taking part in the Trinity Lutheran case as friends-of-the-court (amici) in opposition to the church’s claim also sent a letter to the court on Tuesday arguing that the state can no longer defend the policy challenged by the church, because of the switch in policy by the Missouri governor, so the case is now moot. The American Civil Liberties Union and the Americans United for Separation of Church and State filed their joint letter even though they are not direct parties in the case and the court’s request for reactions to the new development was directed only to the parties.
It was not clear on Tuesday afternoon whether the court’s clerk would even pass that letter on to the Justices. If the clerk does not treat it as a formal part of the case record, the Justices simply may not ever see it, although news stories have made that a public document. (UPDATE Tuesday evening: the court’s docket page shows only the letters from the church and from the state, meaning that the letter from the two amici was turned away. Alao, that is what the organizations’ lawyers said they were told by the court clerk.)