Now that Neil Gorsuch is officially a Justice of the Supreme Court, it’s worth considering in a concrete way what his presence might mean for the future of American law.
While his opinions will certainly deal with many different topics and issues, one area where Gorsuch might exert particularly strong influence is the First Amendment.
When he served on the Tenth Circuit Court of Appeals, Gorsuch was in the majority in several cases which adopted a broad understanding of religious liberty.
Perhaps the most familiar of these was Hobby Lobby Stores v. Sibelius, where he wrote a concurring opinion which affirmed that the Affordable Care Act’s contraceptive mandate as it applied to private businesses violated the Religious Freedom Restoration Act.
During his nomination process, many speculated about how Gorsuch’s addition to the Supreme Court might affect religious liberty.
How serendipitous, then, that the Court has just heard a case which directly addresses the topic of the First Amendment with respect to religion.
On April 19, the Justices heard oral arguments in Trinity Lutheran Church of Columbia v. Comer, a case in which Trinity Lutheran sued the State of Missouri because it refused to pay to resurface the church’s playground.
In denying the church funding, Missouri cited a statute of its state constitution which prohibits the allocation of public money to churches as well as the use of taxpayer dollars for religious purposes.
As is true with every case that reaches the Supreme Court, there are good arguments on both sides.
Missouri takes the position that the statute (which is on the books in 38 states and is known as the Blaine Amendment) is fully consistent with the Establishment Clause and serves to encourage rather than restrict religious liberty.
Trinity Lutheran, on the other hand, argues that the law represents status discrimination since the rejection of funding occurred solely because the institution is a church.
It is tough to know exactly how Gorsuch will rule in this case, since the facts of it are especially unique.
While it is true that the preschool is an explicitly religious one, it is also true that the tire scraps that would be used to resurface the playground do not in-and-of themselves further a religious purpose.
In the past, the Supreme Court has been very wary of laws which allow for the allocation of public money towards purposes that are discernibly religious.
The question that the Justices will have to answer at the end of the day is whether the exclusion of Trinity Lutheran from the secular aid program violates the Free Exercise Clause.
Gorsuch has wrote in the past that the law “doesn’t just apply to protect popular religious beliefs.”
Rather, he remarked, the law “does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.”
While this quote is not very helpful in an analysis of this specific case, it nonetheless clearly demonstrates Gorsuch’s steadfast commitment to religious liberty.
Thus one should not be surprised if the children of Trinity Lutheran do ultimately have their playground resurfaced, but only time will tell.