Before Church-State Case Begins in U.S. Supreme Court, Missouri AG's Office Recuses Itself

by | April 19, 2017

By Chuck Raasch

Lawyers on both sides of a Missouri church-and-state case were set to argue Wednesday before the U.S. Supreme Court, despite debate about whether Gov. Eric Greitens' announcement that religious organizations should be allowed to apply for state resources had rendered the case moot.

The court is scheduled to hear arguments on a case that began about recycled rubber but has morphed into a constitutional debate about whether state money can be used to aid religious organizations.

Trinity Lutheran Church of Columbia, Mo., applied for a state grant to get recycled rubber to resurface a playground.

The state's Department of Natural Resources under previous Gov. Jay Nixon denied the church's application. The church sued, and the resultant legal arguments hinge on the constitutionality of the "Blaine Amendment" in place in Missouri and 37 other states that bars state resources from going to religious groups.

Meanwhile, the entire Missouri attorney general's office on Tuesday recused itself from the case. That announcement by newly elected Attorney General Josh Hawley's office marked a day of legal maneuverings leading into the hearing of the highly anticipated case.

On Wednesday, James Layton, former solicitor general under previous attorney general Chris Koster, will make the arguments on behalf of Missouri in the case of Trinity Lutheran vs. Pauley.

The reason the case should go forward, John Sauer argued for Missouri, and David Cortman argued for the church, is that governors change and so do policies. But questions remain about the constitutionality of the state's position in Trinity Lutheran vs. Pauley, they said.

"It is the opinion of the attorney general's office that the recent change in policy does not render this case moot," Sauer wrote the court in a letter dated Monday. He is first assistant and solicitor in the office of attorney general. "This court has held that a defendant's voluntary cessation of challenged conduct moots a case only if it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

Cortman, representing Trinity Lutheran, said the court previously "made clear that 'a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.' "

"In sum," Cortman wrote the court in a letter hand-delivered and emailed Tuesday, "Governor Greitens' eleventh-hour policy change does not moot the case and this Court should proceed to a decision on the merits."

However, the American Civil Liberties Union argued in its own letter to the court that Greitens' announcement put the state and the petitioners on the same side of the issue, negating any reasons to argue the case.

It urged the court to dismiss or remand Trinity's case to a lower court of appeals.

"The state will now permit religious institutions to receive grants from the Department of Natural Resources. As a result, petitioner Trinity Lutheran Church has received all the substantive relief that it sought in its complaint. The case is therefore moot," ACLU lawyers Daniel and Richard Katskee wrote.

Separation of church and state advocates say the Blaine Amendment, a 19th century act that was passed to prohibit public money from going to religious institutions, imposes impossible restrictions that amount to religious discrimination. The Blaine Amendment was widely adopted as a response to increased Catholic immigration to the United States.

Hawley criticized the state's Blaine Amendment while running for his job last year. He recused himself from the Trinity case because he had performed work for Trinity Lutheran as a private attorney before taking office in January.

Tuesday, after writing the letter to the court saying the case should continue, Sauer, Hawley's first assistant, issued a statement:

"Last Thursday, Governor Greitens issued a directive prohibiting state agencies from denying public grants to religious groups on account of their religious nature," Sauer said. "Because the attorney general's office will be called upon to defend this new policy, the office has recused itself from any further participation in this case. ... Office recusal is now important to preserve the attorney general's ability to vigorously defend the governor's policy."

Sauer said Layton "will represent the Department of Natural Resources going forward in this case and in the oral argument on Wednesday."

In this arrangement, a former state official will be defending Missouri policies that the state's current governor, Greitens, has labeled "prejudiced" against religious organizations. Greitens announced last Thursday that Missouri's Department of Natural Resources would allow religious organizations to apply for and receive grants like the ones denied to Trinity under Nixon's administration.

"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.

He said his announcement should not affect the case because it was not specifically directed at Trinity.

The day after the governor's announcement, the Supreme Court's clerk asked both parties to submit their views on whether the case was affected by Greitens' announcement.

Cortman offered veiled criticism of Greitens' entry into the process, even though Greitens' announcement tacitly backs Cortman's legal arguments against Missouri's claims.

"The governor's policy change comes late in the day, on the eve of oral argument, thus casting doubt on its permanence," Cortman wrote the court.

"A change in administration could readily lead to a resumption of the State's former policy of excluding churches from the Scrap Tire Program or the Governor could simply change his mind due to political pressure," Cortman continued. "The state briefed this case with a vigorous defense of the Department of Natural Resources ... and has defended the case on that basis for over four years.

"The ease with which the Department's policy was changed, the fact that it occurred only after an intervening election and change in administration, and the vigorous defense of the policy at all levels for the last four years make it impossible for the state to make it 'absolutely clear' that the former policy of excluding churches from the Scrap Tire Grant program will not be revived," Cortman wrote. "That is particularly true given the last-minute nature of the policy change."

The Trinity case also is getting widespread attention as one of the first major arguments before a court that had been missing a justice for 14 months.

For more than a year, politics kept the Republican-controlled Senate from filling the position left open after the death of Justice Antonin Scalia. But Neil Gorsuch, the justice nominated by President Donald Trump and confirmed by a divided Senate, has become the ninth justice, filling the court.

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