Where might Justice Gorsuch have impact?

Sometime between now and the end of the Supreme Court’s current term in late June, the court is expected to hand down decisions in two important church-state cases. Although its newest member, Justice Neil M. Gorsuch, didn’t join the court in time to participate in one of them, he may play a large role in the other.

Gorsuch’s vote also could be crucial in settling a question still unanswered at the time this is written: whether the Supreme Court will review the conviction of a baker found guilty of violating Colorado anti-discrimination law by refusing to bake a cake to celebrate a same-sex wedding.

The court has listed this case as “under consideration” for weeks, perhaps in anticipation of the new justice’s arrival. A minimum of four “yes” votes are needed in order for the justices to accept a case, and Gorsuch’s vote could be deciding. If the court does review it, the case will be argued in the term that begins next October.

Gorsuch confirmation

Gorsuch was confirmed by the Senate on April 7 by a vote of 54-45. Confirmation followed a bitter fight occasioned by the refusal of Senate Majority Leader Mitch McConnell (R-Ky) to allow consideration of President Barack Obama’s third and last Supreme Court pick, Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia.

Obama nominated Garland after the death of Justice Antonin Scalia in February 2016. Earlier, two other Obama nominees, Sonia Sotomayor and Elena Kagan, had taken seats on the Supreme Court as part of its four-member liberal bloc.

President Trump’s choice of Gorsuch was praised by social and religious conservatives. They view him as a talented conservative jurist who may be instrumental in overturning or at least limiting Roe v. Wade, the 1973 Supreme Court decision legalizing abortion, and expect him to side with people — such as the Colorado baker — who cite religious grounds for not cooperating with same-sex weddings, which the court two years ago declared a constitutionally protected right.

But how Gorsuch votes in the church-state case to be decided in the weeks just ahead may show even sooner where he stands on religious liberty in general.

Playground dispute

That dispute began in 2012 when Trinity Lutheran Church of Columbia, Missouri, which operates a day care and preschool, sought funds from a playground safety program administered by the Missouri Department of Natural Resources to replace a gravel playground surface with a rubberized one. The playground is used by children in the church program and other neighborhood children.

Among 14 funding requests approved by the natural resources department, Trinity Lutheran’s ranked fifth. But the department nevertheless said “no” to the church — in the words of the church’s appeal to the Supreme Court, “solely because of who it is — a church.” In explanation of its action, the department cited a provision of the state constitution barring use of state funds “in aid of any church.”

Trinity Lutheran argues that this violates its First Amendment right to free exercise and its 14th Amendment right to equal protection. “A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane,” the church said in its brief to the Supreme Court.

The Supreme Court accepted the case early last year but put off scheduling oral arguments for many months, apparently to avoid an inconclusive 4-4 tie in the absence of a ninth justice. Gorsuch’s confirmation solved that problem, and the court heard arguments April 19, with a decision expected in a few weeks.

Shortly before the case was argued, Missouri Gov. Eric Greitens announced he was reversing the policy under which the natural resources department turned down the church’s request. But lawyers representing both sides argued that the case should go forward anyway since Greitens or a successor could reverse the reversal. The justices did not say otherwise during oral argument.

Lasting effects

The case (Trinity Lutheran v. Comer) has church-state implications far beyond a fight over money for upgrading one playground.

The provision of the Missouri state constitution involved here resembles provisions in the constitutions of 36 other states whose origins go back to a notoriously anti-Catholic proposal known to history as the Blaine Amendment.

The name comes from James G. Blaine of Maine, Speaker of the U.S. House of Representatives, who in 1875 proposed an amendment to the U.S. Constitution along these lines.

Coming at a time of widespread anti-Catholic sentiment, the Blaine Amendment was targeted at Catholic parochial schools. It passed the House of Representatives but fell four votes short of the required two-thirds majority in the Senate. Blaine-type amendments then spread to the states, Missouri among them.

As a dispute calling for resolution by the Supreme Court, the case also embodies a classic conflict between narrow and broad understandings of religious liberty.

Missouri argues that it is not violating religious free exercise since refusing funds to a church-owned playground does not prevent the church’s members from worshipping as they wish. But Trinity Lutheran contends that the church’s exclusion from this secular program is “an overbroad restriction on the faithful’s ability to participate on equal terms in public life.”

Church ministry case

The second church-state case the Supreme Court is expected to decide also touches on larger questions than the facts of the dispute may suggest. Justice Gorsuch was not on the court last March when oral arguments in this dispute took place and so will not participate in deciding it — unless, of course, the court directs that it be reargued next fall in order to get his vote.

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The case (Advocate Health Care Network v. Stapleton) concerns whether the retirement plans of church-sponsored institutions — in this instance, hospitals — are exempt from regulatory provisions of the federal Employee Retirement Income Security Act (ERISA) if the plans were not created by the churches. The law is said to be unclear on this point.

During oral arguments, the justices seemed sympathetic to the view that since the Internal Revenue Service and other federal agencies have answered yes — these retirement plans are exempt — for the last 30 years, it would be unfair for the court to say now that say they are not.

All this is important but relatively technical. Behind the dispute, however, lies a larger question that goes well beyond the ins and outs of federal regulatory and tax law: Who gets to decide — the government or the church — whether particular institutions and their programs are part of a church’s fundamental ministry?

Russell Shaw is an OSV Newsweekly contributing editor.