4 Entertaining Moments During Oral Arguments Over Banning Churches From Public Funds

Travis Weber is Director of the Center for Religious Liberty at Family Research Council.  This article appeared in The Federalist on April 24, 2017.

It’s not every day that you get such a collection of entertaining quotes from Supreme Court justices. Last week’s oral arguments in Trinity Lutheran Church v. Comer will decide whether a state can exclude a religious entity from a public grant program just because the entity is religious. These four entertaining moments from those arguments indicate the court will likely rule for the church in this case.

1. Justice Kennedy’s Rejoinder About Fire Protection

When Missouri’s counsel tried to argue that giving the churches public money entangled the government with religion because the grant conditions incentivized the recipients to publicly proclaim that the government helped them out, Justice Anthony Kennedy responded: “I mean, you could say the same thing . . . that the church is delighted that it has fire protection.”

I think everyone got the point.

2. Justice Breyer’s Frustration at Leaving Kids to Themselves

Growing increasingly frustrated with the state’s argument at one point, Justice Breyer animatedly asked: “[H]ow does it permit Missouri to deny money to [a church] for helping children not fall in the playground, cut their knees, get tetanus, break a leg, et cetera?”

Breyer’s frustration was palpable, and he didn’t seem convinced. Indeed, elsewhere he admitted he was “afraid” of the implications of the state’s argument.

3. Justice Alito’s Devastating Point on Terrorist Protection

Justice Samuel Alito pointed out that certain nonprofit facilities may receive government money to fortify themselves against terrorist attacks, and asked whether the government should tell religiously affiliated facilities to fend for themselves: “So if you have a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?”

The state’s attorney said it would not.

Justice Alito also asked whether it would be permissible to allow public money to be used for “security enhancements at schools where there’s fear of shooting or other school violence,” as a New York City program allows. The states’ attorney again said it would not.

After this exchange, the ridiculousness of the state’s position was only compounded further.

4. Justice Roberts’ Revealing Tour Hypothetical

Chief Justice John Roberts showed the absurdity of the state’s argument with one simple question: “What if you had a program at the state capital? You had tours for school groups, and you had someone who, you know, coordinated, tied it into the social studies program; school groups can come in, but no religious schools. Is that okay?”

The state’s attorney responded: “I don’t know that it would be.”

Not much more was needed after this exchange. The outcome of the case seemed plain to most observers.

The justices were all very active questioners during these arguments, and most of them seemed skeptical of the state’s arguments. At one point, the state’s position seemed so weak that Justice Sotomayor tried to throw it a lifeline by suggesting there wasn’t even real adversity of arguments in the case. Only Justice Ginsburg didn’t say anything when the state’s attorney argued, and Justice Sotomayor was vague about where she stood on the case.

The other seven justices look likely to side with the church, so we can expect at least a 7-2 decision, and possibly an 8-1 or 9-0 ruling. In his first big religious liberty case on the high court, Justice Gorsuch didn’t say much, but what he did say showed he clearly favored the church’s position, and made it clear he wasn’t buying the state’s arguments.

Trinity Lutheran Church is only asking to be treated the same as everyone else. That shouldn’t be too much to ask, and we hope the Supreme Court will deliver a victory for this church and religious freedom.