Missouri Gov. Eric Greitens has instructed the state government to allow funding associated with a secular playground aid program to be awarded to religious organizations, a move that relates to a case that will be heard by the United States Supreme Court on April 19.
On Wednesday, Greitens, a Republican who was sworn into office in January, instructed the state's Department of Natural Resources to permit religious organizations to be eligible to receive grants to help revitalize playgrounds.
The move comes as the nation's highest court is scheduled to hear the case of Trinity Lutheran Church of Columbia v. Comer next Wednesday. The Supreme Court took up the case after the U.S. Court of Appeals ruled that the state did not violate the First Amendment rights of a church-run daycare by denying its funding request to replace playground gravel with a soft rubberized material.
The church's request was denied by the state on the basis that an 1875 amendment to the Missouri constitution states that "no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion."
"Before we came into office, government bureaucrats were under orders to deny grants to people of faith who wanted to do things like make community playgrounds for kids. That's just wrong," Greitens said in a statement. "So today we are changing that prejudiced policy."
"We have hundreds of outstanding religious organizations all over the state of Missouri who are doing great work on behalf of kids and families every single day," Greitens added. "We should be encouraging that work. So, today we are changing that prejudiced policy."
Despite Greitens announcement, Alliance Defending Freedom Senior Counsel David Cortman, who will argue on behalf of Trinity Lutheran, said in a statement that the announcement "doesn't resolve the discriminatory actions that were taken against Trinity Lutheran preschool and the attempt to deny Trinity Lutheran its constitutionally protected freedom to participate equally in society."
"As people across the nation celebrate Holy Week and Passover, Alliance Defending Freedom looks forward to advocating for the equal treatment of all Americans of faith at the Supreme Court next week," Cortman said.
On a Friday press call hosted by the Federalist Society, Aaron Streett, the chairman of Baker Botts' Supreme Court and constitutional law practice, explained that Trinity Lutheran's case can be kept alive despite the governor's action, adding that the preschool could seek damages caused by not having their playground rubberized.
"The timing of that announcement suggests that, at the very least, it was designed to affect the oral argument and an attempt to moot the case and give the court and opportunity to avoid deciding the case if it chooses to take that route." he said. "It will be very important to see what the state's attorney [James Layton] advocates, whether he suggests that this moots the case or he continues to defend the case."
Liberal activists have condemned the governor's announcement, arguing that his action has violated the state constitution and even "put religious freedom for all at risk."
"Gov. Greiten's political decision to blur the lines between church and state is dangerous and directly goes against what our nation's founders intended: to protect religious freedom by keeping it separate from government," Jeffrey Mittman, the executive director of the ACLU of Missouri, said in a statement. "This new policy compromises constitutional principles and puts religious freedom for all at risk."
In the conference call, Streett argued that the constitutional amendment banning funds from going to religious organizations is really up for interpretation.
"It's part of the state constitution but the state government has some leeway in deciding how to interpret it. Many other states that have a similar state constitutional provision, have interpreted it more narrowly to only bar funding for religious purposes or funding that goes in a targeted way towards religion instead of as part of a general funding program," Streett said.
"The provision itself is somewhat vague and open to interpretation. Missouri courts have interpreted it broadly. But, it seems reasonable, on its face, that a governor could say 'As a matter of my administration's policy, we are going to interpret it more narrowly as we carry out this funding program.'"
According to the St. Louis Post-Dispatch, Greitens doesn't expect his action to affect the Trinity Lutheran case because it involves a decision made by DNR years before he took office.
Saint Louis University law professor Chad Flanders also said in an interview with STLToday that that the governor's action doesn't make the case moot because the lawsuit is based on an act by the state government that makes the church believe it has been a victim of religious discrimination. He pointed out that the church "still doesn't have the recycled tires it wants."
Flanders also warned that there could be legal challenges to the governor's new policy brought forth by taxpayers who oppose state funding going to churches.
"What this probably leads to is a suit by a taxpayer claiming that the new projects being funded are a violation of Missouri's state constitution," Flanders added.