On April 19, 2017, a full complement of the United States Supreme Court heard arguments in one of the most important religious liberty cases in years, Trinity Lutheran Church v Comer. Seated on the far right, in seat nine as the youngest member, was the 113th Justice of the Court, the Honorable Neil Gorsuch.

Many court observers look to him to determine the outcome of this case. I’m one of them.

Trinity Lutheran Church provides a daycare service with a playground open to children in the neighborhood. The state of Missouri offered grants to non-profit organizations to help them install safer rubber surfaces made from recycled tires. It was to replace gravel on playgrounds.

In 2012, the church applied for the grant. Its application complied with requirements. It ranked fifth out of forty-five applications.

The application was denied because Trinity Lutheran is a church.

The position of the Church was argued by David Cortman, Senior Counsel and Vice President of Litigation for the Alliance Defending Freedom. From reports I received he presented a strong case before the Court. 

The Controversy

But isn’t such hostility toward a church unconstitutional? Maybe not in states like Missouri. Missouri’s state constitution has a “Blaine Amendment.” It prohibits government funds from going to a religious institution for any reason. It conflicts with the purpose of First Amendment to the Bill of Rights of the U.S. Constitution. 

On April 14, 2017, Missouri reversed course and announced it would permit the State’s Department of Natural Resources to award grants to church related enterprises. However, that decision did not include Trinity Lutheran.

Both Missouri and Trinity Lutheran Church asked the Court to continue with the argument at the Supreme Court. They know this case is about the way the First Amendment’s religion clauses will be interpreted in the United States of America going forward.

The First Amendment to the Bill of Rights begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The first part is called the Establishment Clause. It was written to prevent the single church established by the federal government. It was also intended to protect citizens from religious coercion.   

The second part is called the Free Exercise Clause. It’s purpose is to protect the expression of faith in daily life. The American founders did not use the expression freedom of worship. They wanted to protect the right of religious citizens to live their faith once they left their Sunday Church services.

That meant when engaging in commerce, participating in politics, and pursuing liberty and happiness. The founders also respected the role of churches and religious institutions in serving the common good.   

Poorly reasoned Supreme Court opinions have eroded the effect of both clauses. The intolerance of secularism and progressivism has become deeply entrenched. Many people accept the progressive and anti-religious spin on our founding documents. That includes judges and courts that have lost their way.  

As a result, many Americans have accepted the idea that an agency of the federal government (like the I.R.S), can decide what the Establishment clause and Free Exercise Clause mean. But the I.R.S. did not exist at the founding. Neither did the distinction between  for-profit and non-profit corporation.

The founders viewed religious freedom as a natural right. They did not want to the government to deny the freedom of the Church to fully participate in society. Churches and religious groups, they knew, were mediating institutions, a part of the governing enterprise.

The Future of Religious Freedom

Justice Neal Gorsuch is referred to as a “strict constructionist” in his judicial philosophy. That means he will interpret laws and the Constitution in the manner the words plainly suggest. Also, he will not use his judicial office to make law.

But, how will Justice Gorsuch approach this case?

 Will he strictly construe the Missouri Constitution with its Blaine Amendment language that, “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church…”? If so, will he conclude that Missouri may prohibits grant money for replacing gravel in a playground just because the playground is owned by a church?

Or, will he follow the language of the First Amendment? Will he protect Trinity Lutheran from being excluded from grant money used for the safety of children because it is a church?

The label “strict constructionist” gives us no clue. The opinion will.

All eyes are rightly fixed on Justice Neil Gorsuch. This case could determine religious freedom in the American future.