Is The Trinity Lutheran Church Building Illustration Moot?

Cross-posted at Take Care.

The Supreme Court volition entertain statement tomorrow morn in Trinity Lutheran Church v. Comer.  The representative involves a accommodate against the Director of the Missouri Department of Natural Resources (DNR), arising out of a determination DNR made inward 2012 to disqualify the Trinity Lutheran Church (TLC) from receiving a grant nether the Missouri Scrap Tire Grant Program (STGP).  The STGP provides a handful of competitive grants each twelvemonth to preschools too daycare centers for the costs of using the prophylactic from old tires to resurface playground surfaces.  DNR did non only create upwardly one's take away heed 1 day, of its ain accord, to exclude churches from the funding program.  Nor did the Missouri legislature impose such a disqualification.  Rather, such exclusion is required past times virtue of iii provisions of the Missouri Constitution—enacted inward 1820, 1870 too 1875—that categorically bar the state from straight funding churches.  When TLC applied for a STGP grant inward 2012, DNR denied that application because Trinity Lutheran is a church, too thence the Missouri Constitution prohibits Missouri from providing it amongst direct fiscal assistance.

As the amicus brief for the Baptist Joint Committee explains, such categorical funding prohibitions seem inward the constitutions of at to the lowest degree 39 states.  (Disclosure:  I consulted amongst the BJC on this brief.)  The states mostly enacted these provisions before 1860, too they derive straight from Jefferson’s 1779 Bill for Establishing Religious Freedom in Virginia, which provided that “no homo shall hold upwardly compelled to . . . back upwardly whatever religious . . . place, or ministry building whatsoever.”  (They are not, inward other words, “Little Blaine Amendments.”  Those laws, enacted later on inward the Nineteenth Century, primarily concerned restricting assist to religious schools, most of which were Catholic.  Most of the categorical state bars on funding of churches, past times contrast, became component of state constabulary earlier, too manifestly were non animated past times anti-Catholic animus—after all, the overwhelming pct of churches weren’t Catholic.  Nor were they grounded inward hostility to religious belief generally:  As I utter over on this podcast with Tom Berg too Chris Lund, they were—like the Virginia Religious Freedom Bill—designed principally to protect the autonomy too integrity of churches, to forestall state administrators too legislators from making discretionary decisions for too against especial denominations, too to ensure that churches would non larn embroiled inward contests for scarce populace aid.)

TLC sued the Director of DNR, raising claims nether the Free Exercise too Equal Protection Clauses of the federal Constitution.  The courtroom of appeals, relying primarily upon Locke v. Davey, held that although the federal Constitution itself does non prohibit Missouri from direct funding of a church, Missouri may impose such a categorical prohibition.  The Supreme Court agreed to hear the case, too the Court volition entertain oral statement tomorrow morning.  (For what it’s worth, I intend the Eighth Circuit was much likewise quick to assume that the Establishment Clause would non bar the funding.  The Supreme Court has never approved of direct state funding of a church—indeed, it’s something that has almost never been done inward our nation’s history, until recently—and inward his bulk thought for the Court in Rosenberger, Justice Kennedy cautioned that “we have got recognized special Establishment Clause dangers where the authorities makes direct coin payments to sectarian institutions” too that “[i]t is, of course, truthful that if the State pays a church’s bills it is subsidizing it, and nosotros must guard against this abuse.”  In her controlling thought in Mitchell v. Helms (2000), Justice O’Connor likewise wrote that at that topographic point are “special dangers associated amongst direct coin grants to religious institutions”—a “form of assist [that] falls precariously closed to the master copy object of the Establishment Clause’s prohibition.”  See also Everson v. Board of Educ. (“The imposition of taxes to pay ministers' salaries and to create too maintain churches and church property aroused the[] indignation [of the freedom-loving colonials].”)

Last Friday, the novel Governor of Missouri announced, on Facebook, that the Missouri DNR volition no longer exclude churches from eligibility nether the Scrap Tire Grant Program.  The Governor did non explicate why DNR tin or should do so, inward calorie-free of the Missouri Constitution.  He did not, for example, conclude—not publicly, anyway—that the Missouri Constitution does non impose such a prohibition; nor did he struggle that Missouri’s constitutional bar on funding of churches violates the federal Constitution.  Moreover, equally far equally the populace tape is concerned, at that topographic point is no tape of whatever communication from the Governor to DNR at all, allow lonely 1 that issues a directive or adopts a legal view.  Most importantly, perhaps, the tape is silent, equally far equally I am aware, close whether the Director of DNR volition abide past times the Governor’s statement and, if so, why.  (I do non know whether, nether Missouri law, the Governor may direct the DNR Director to disregard provisions of the Missouri Constitution.)

The Supreme Court promptly asked the parties for “their views on whether this representative is affected past times the press release relating to access to Missouri grant programs issued past times Governor Greitens on Apr 13, 2017.” 

Today, counsel for the Church filed this letter, arguing that the representative is non moot nether the Court’s “voluntary cessation” doctrine because “[a] alter inward direction could readily Pb to a resumption of the State’s quondam policy of excluding churches from the Scrap Tire Program or the Governor could only alter his take away heed due to political pressure.” 

In another alphabetic lineament filed this morning, the Missouri Attorney General’s Office makes the same argument: that the representative is non moot because the Governor, or the Director—“or, to a greater extent than likely, 1 of their successors—could reinstate the previous policy.”  Notably, the Missouri AG’s Office no longer the DNR Director’s counsel—in the really same letter, the AG’s Office informs the Court that it is recusing itself from the case, so that it mightiness later on hold upwardly able to defend the DNR’s novel policy!  (The AG’s Office has authorized James Layton—who was the Missouri SG until January, but who is right away inward individual practice—to correspond the DNR Director.  Layton volition fence the representative tomorrow.)  The alphabetic lineament concludes past times stating, however, that the actual accused inward the case, DNR Director Carol Comer, has authorized the AG’s Office to correspond that she “agrees amongst the conclusion of the Attorney Generals Office regarding mootness equally expressed inward this letter.”  The AG Office alphabetic lineament also states, without elaboration, that “the state way is no longer denying benefits to organizations exclusively because of their religious affiliation,” although the Director herself has non said that.  Nor has Ms. Comer explained why she thinks it may hold upwardly legal for her to render a direct grant to a church, nether Missouri law.

As for the merits of the letters’ statement that the representative is non moot . . . I’m doubtful, for 2 reasons. 

First, inward the ordinary “voluntary cessation” case, the accused agrees to halt harming the plaintiff but does non concede that it would hold upwardly unlawful to resume doing so—and it’s that prospect of hereafter resumption that keeps the representative alive.  As Justice Alito lately wrote for the Court inward Knox v. SEIU, “[t]he voluntary cessation of challenged bear does non unremarkably homecoming a representative moot because a dismissal for mootness would permit a resumption of the challenged bear equally shortly equally the representative is dismissed. . . . [H]ere, since the union continues to defend the legality of the Political Fight–Back fee, it is non clear why the matrimony would necessarily refrain from collecting similar fees inward the future.”

In Trinity Lutheran, past times contrast, presumably Ms. Comer volition allow TLC to have an STPG only because she has concluded that it would hold upwardly unlawful to exclude TLC from eligibility – i.e., either because she construes the Missouri Constitution non to impose the prohibition (in which representative she’d have got no ground for disqualifying TLC, too such disqualification, without compulsion of a state constitutional rule, would probable violate the federal Constitution); or because she agrees amongst TLC that the federal Constitution prohibits such an exclusion of churches.  If Ms. Comer adopts 1 or the other of these views of the law, at that topographic point is no ground to believe she volition alter those views inward the close future, absent a ruling of the Missouri Supreme Court compelling her to do so (about which to a greater extent than below).  And if it is her catch that she may not exclude TLC from the program, too so the predicate of the “voluntary cessation” doctrine is non present.

Second, inward the ordinary “voluntary cessation” case, the plaintiff is bespeak the accused to stop doing something, too there’s a peril the accused volition resume doing the really affair that harms the plaintiff.  Here, past times contrast, the plaintiff is inward upshot bespeak the state to provide it amongst something for a single, discrete role (to pay for its playground resurfacing). If it is truthful that the DNR volition right away allow TLC to hold upwardly eligible to have a grant to pay for its playground resurfacing, too so TLC has received all of the injunctive relief that it sought inward its complaint.  That electrical charge asked the courtroom to “[e]nter a preliminary too permanent injunction enjoining the Defendant, her agents, servants, employees, officials or whatever other someone acting inward concert amongst her or on her behalf, from discriminating against the Church on hereafter grant applications based upon the connecter betwixt the Church too the Learning Center, including applying the Blaine Amendment against the Church to deny it a grant for recycled tires because it is a church.”  If the Missouri AG Office alphabetic lineament is to hold upwardly believed, the DNR will not discriminate against TLC because it is a church building if too when it files a novel application for an STGP grant.  Therefore TLC is right away receiving the relief that it asked for.  (The electrical charge also seeks a declaratory judgment that the past denial of a grant inward 2012 was unconstitutional.  TLC does non seek damages for that denial, however; too I don’t run into how an abstract dispute close whether past times bear was constitutional is the variety of disagreement that would back upwardly Article III standing.)

To hold upwardly sure, it’s theoretically conceivable that some hereafter DNR Director volition contrary course of pedagogy too 1 time once to a greater extent than disqualify TLC from receiving an STGP grant.  But at that topographic point is no reason to believe Ms. Comer volition do so, assuming she has concluded either that the Missouri Constitution does non impose a prohibition on funding churches, or that the state constitutional provisions violate the federal Constitution.  Presumably, TLC volition 1 time once to a greater extent than apply for the grant inward 2017.  (Indeed, if it didn’t have got whatever existing plans to resurface the playground or to seek a grant, too so it likely would lack standing to seek the prospective relief.)  If the facts or applicant puddle have got non changed much since 2012, it is probable to have a grant this year.  (In 2012, TLC ranked 5th out of to a greater extent than than forty applicants for 1 of the fourteen available grants, after DNR assessed the applications based upon the the prescribed factors.)  And if it does have the grant this year—or whatever fourth dimension during Ms. Comer’s tenure inward office—then the theoretical prospect of a hereafter alter inward DNR policy is only irrelevant, equally far equally TLC is concerned, because the resurfacing volition already have got been subsidized.  (I suppose it is theoretically possible that TLC volition immature adult woman the cutting this year, too every other twelvemonth Ms. Comer is the Director, too that a future DNR Director volition thereafter exclude TLC from consideration before it has received a grant—but that is awfully speculative, too presumably far downwardly the road.)

The Missouri AG Office alphabetic lineament suggests some other statement close why the representative allegedly is non moot:  If too when the DNR does number a grant to TLC, Missouri constabulary would allow a taxpayer to sue inward Missouri courtroom to enjoin such a payment equally unlawful nether the Missouri Constitution; too (the alphabetic lineament implies) it’s possible that the Missouri courts, different the Governor too Ms. Comer, volition actually enforce the Missouri Constitution’s iii provisions banning direct funding to churches.  This prospect, of hereafter state-court enforcement of the state constitution, is far to a greater extent than plausible than the notion that the DNR volition voluntarily flip the switch 1 time to a greater extent than tomorrow.  It does not, however, suffice to maintain hold upwardly the current case brought past times TLC against the DNR Director.  If too when the Missouri Supreme Court enjoins Ms. Comer from making a grant to TLC, too so Ms. Comer herself (and TLC) could petition for certiorari from that state courtroom decision, too fence that the application of the Missouri Constitution violates the federal Constitution.  That would hold upwardly a different case—one inward which the the United States Supreme Court would have got the chance to resolve the federal constitutional questions amongst the do goodness of the views of the Missouri Supreme Court on the proper application of the Missouri Constitution.

Nevertheless, at that topographic point remains some uncertainty close Director Comer's views--and that uncertainty complicates the mootness enquiry somewhat.  

For 1 thing, it is, I suppose, possible Comer volition have got the catch inward Court that she volition not abide past times the Governor's directive--that inward her view, the Missouri Constitution does prohibit funding to churches, that the federal Constitution does non forestall such a no-funding rule, too that she is non required nether Missouri constabulary to do what the Governor tells her to do, so that she tin abide past times her ain catch of the law.  In that case, of course, the dispute would non hold upwardly moot.

Alternatively, Comer mightiness fence that although she continues to adhere to the views expressed inward her brief -- that Missouri constabulary requires disqualification of churches, too that such a disqualification is non constitutionally problematic -- nevertheless she has no choice nether Missouri constabulary except to implement the Governor's contrary directive.  If that is what her counsel argues tomorrow, I'm non sure enough that it would maintain the representative alive--after all, Ms. Comer's actions would render the TLC amongst the relief it asked for, regardless of what her legal views mightiness be--but the justiciability analysis would non hold upwardly nearly equally straightforward (that is to say, I haven't had fourth dimension to intend through what should laissez passer on inward such a case!).

Stay tuned . . . .

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