This column by ACRU Fellow Ken Klukowski was published April 20, 2017 by Breitbart.

WASHINGTON — The Supreme Court seems poised to strike down constitutional amendments in 39 states that forbid tax money from going to churches after Wednesday’s oral arguments in Trinity Lutheran Church v. Comer, unless two procedural issues derail the case at the last minute.

Missouri has a state program in which they reimburse organizations who use recycled tire rubber to make floor surfaces on playgrounds softer and safer for children. Trinity Lutheran Church runs a preschool daycare, but is disqualified from being reimbursed because it is a church-related organization.

In the late 1800s, there was an anti-Catholic attempt nationwide to pass a federal constitutional amendment that would bar taxpayer money from going to any religious organizations, on the theory that it would block Roman Catholic schools. While this “Blaine Amendment” never passed at the federal level, 39 states adopted similar provisions in their state constitutions. Missouri is one of those states.

Although originally intended to target the Catholic faith, Blaine Amendments apply to all churches and primarily faith-based operations. As time went on all faiths have found themselves deprived of these programs, whether Evangelical, liberal Protestant, Jewish, or other faiths. Blaine Amendments became a legal tool to push secularism over faith.

Many lawyers and experts have argued for decades that Blaine Amendments violate the Free Exercise Clause of the U.S. Constitution’s First Amendment, which provides that the government will not abridge the free exercise of religion. But that is what is happening here, where a church is disqualified from being treated like everyone else for a purely secular program solely because it is an organization that also exercises religious faith.

Justice Elena Kagan may have tipped her hand that she might side with people of faith in this case, which would suggest this could be a lopsided vote in favor of religious liberty, rather than a 5-4 split among the justices.

“But it does seem as though… this is a clear burden on a constitutional right,” Kagan said to James Lanton, the lawyer defending Missouri’s constitutional provision. “And then your interests have to rise to an extremely high level” for the U.S. Constitution to allow the law to stand.

Justice Anthony Kennedy asked hard questions of both sides. “Back in 1947, this Court said in no uncertain terms what the Framers didn’t want was tax money imposed to pay for building or maintaining church property,” he said to Dave Cortman of the Alliance Defending Freedom, representing Trinity Lutheran.

Kagan likewise asked tough questions of both sides. “Suppose there was an application from a church that used its playground for religious activities, had prayer services there, for example.” she began. “Could the state, in your view, deny the money on that ground?,” she asked Cortman.

Justice Ruth Bader Ginsburg’s toughest questions were directed at Cortman. “Could they demand as a matter of federal constitutional right that that playground be funded, even though they have an admissions policy that favors members of their church?”

“This church is not going to close its religious practices or its doors because its playground doesn’t have these tires,” said Justice Sonia Sotomayor, who like Ginsburg seemed skeptical of the church’s legal argument. “So I’m not sure how this is a free-exercise question, because there is no effect on the religious beliefs.”

Kagan made a point about federalism, which again leans in favor of the church, “I guess there’s something attractive about having some play in the joints where states can go their own way and make their own choices,” he began. “And why shouldn’t this be one of those cases?”

Picking up on a question Justice Samuel Alito had asked Cortman early in the argument, Lanton framed the argument in favor of Missouri by saying, “Justice Alito asked the question as to whether this is an admirable tradition that should be respected, this 39-state tradition of keeping hands off of religion, and the answer from the state’s view is yes.”

His name having been raised, Alito peppered Layton with questions on whether three federal programs would violate the Missouri Constitution if the state had an identical program, such as a federal program for repairing the buildings surrounding the federal facility partially destroyed in the 1995 Oklahoma City bombing. Layton answered that those programs would be illegal in his state.

Justice Stephen Breyer asked one of the most challenging questions of Lanton, suggesting that he too might consider voting for the church. After getting Missouri’s lawyer to admit that the Constitution would not allow an imaginary law providing that police and fire departments would protect everyone in the state except for churches, Breyer asked:

If [the Free Exercise Clause] does not permit a law that pays money out of the treasury for the health of the children in the church, school, or even going to church, how does it permit Missouri to deny money to the same place for helping children not fall in the playground, cut their knees, get tetanus, break a leg, etc.? What’s the difference?

Trinity Lutheran and their lawyers should not be cheering just yet, though. There are two procedural matters that could derail the entire case.

First, Article III of the Constitution requires adversity for a federal court to have jurisdiction to decide a case, meaning that the two parties must disagree with each other over the legal issue before the court. Here, the state attorney general has taken the side of the church, which is why Lanton, a private attorney, was appointed to defend the state’s Blaine Amendment.

Second, on April 14, Missouri’s new governor declared that he was going to allow Trinity Lutheran, and others, to participate in the tire rubber reimbursement program. Because that could completely remedy the church’s legal injury (being denied reimbursement funds), there is also now a question as to whether the church’s lawsuit has now become moot. Article III does not allow courts to decide moot cases.

Trinity Lutheran Church had a good day before the justices, but it is not clear yet if the Supreme Court will reach the case’s important religious-liberty issue. A decision is expected before July.

Trinity Lutheran Church v. Comer is No. 15-577.