The outcome of pending cases is harder to predict now that Neil Gorsuch has been confirmed to the Supreme Court. With a seat vacant over the past year, the court had only three conservative justices and so tilted to the left. The most conservatives could hope for was a four-four tie if Anthony Kennedy voted with them. With Gorsuch, the court reverts to its four-four split between the left and the right, with Kennedy as the swing vote.

One case to watch is Trinity Lutheran Church of Columbia v. Comer. It’s the most important religious freedom case SCOTUS will consider during the 2017 term. Gorsuch has a record of ruling in favor of religious freedom.

This Isn’t Just About a Playground …

Trinity Lutheran Church runs a child learning center in Missouri, and applied to the state’s Playground Scrap Tire Surface Materials Grant Program. The program recycles scrap rubber tires into rubber surfaces. This makes playgrounds safer for children and reduces the number of tires in landfills. The program is funded by a fee on tires.

The church serves an impoverished area. Children in the community use the playground after hours and on the weekends. Over 90 percent of the children who attend the preschool do not attend the church. The church’s application was ranked fifth out of 44 applicants. Fourteen applicants were awarded grants.

The issue is whether an institution can be denied access to a secular benefit program on the basis of its religious affiliation.

Despite this, the Missouri Department of Natural Resources rejected its application. The agency claimed that aiding a church playground violated the state constitution. It forbids funding “directly or indirectly, in aid of any church, sect, or denomination of religion.”

In response, the Alliance Defending Freedom sued the DNR. ADF argued that an institution can’t be denied access to a secular benefit because it’s religious. A district court judge dismissed the suit. The church appealed to the U.S. Court of Appeals for the Eighth Circuit. That court upheld the decision.

The church appealed again to the Supreme Court, which accepted the case. Oral arguments will begin April 19.

Key Arguments

What Could Happen if the Court Rule Against the Church

• A city fixes the sidewalks downtown but leaves the cracks in front of a church preschool

• A state excludes religious organizations from a statewide asbestos removal program

• Police don’t respond to a break-in at a yeshiva or parochial school

The church believes the state is violating the First Amendment’s guarantee to freely exercise one’s religion. It also claims the state is violating the Fourteenth Amendment’s Equal Protection Clause. Since everyone who buys tires must pay the tax, religious people put money into the program — but can’t benefit from it. Prior SCOTUS rulings on the First Amendment have called for neutrality. But in this case, the government is not acting in neutral way. It is singling the church out. The effect, if allowed to stand, would be that playgrounds in religious settings are less safe than playgrounds in public schools.

The state bases its position on the 2004 SCOTUS decision Locke v. Davey. That 7-2 decision held that students who seek a degree in devotional theology could not get a taxpayer-funded scholarship.

It’s hard to see how this case applies to Trinity Lutheran, however. In the 2004 case, the state banned funds being used for religious instruction. In contrast, Trinity Lutheran Church applied for funds to resurface a playground enjoyed by neighborhood children.

The New Partisan Balance

Supporters of the state’s position argue that a decision in favor of the church could mean that taxpayer funds would go to groups that “discriminate” based on sexual orientation. Since many churches teach that homosexuality is a sin, a decision in favor of the state could harm tens of thousands of religious groups. The ADF warns if the state’s practice becomes precedent, religious organizations could be excluded from the public square.

This is not the only religious freedom case Gorsuch will hear this term. Masterpiece Cake Shop v. Colorado Civil Rights Commission will decide whether a baker has a First Amendment right to decline to bake a cake for a same-sex wedding if it violates his conscience to do so.

Gorsuch will serve to act as a check on recent power grabs by SCOTUS. Lacking a partisan balance on the Supreme Court last year, the left-leaning justices aggressively struck down legislation and issued far-reaching rulings in regards to education. In Whole Women’s Health v. Hellerstedt, a divided Supreme Court ruled against a Texas law that added abortion regulations. In Fisher v. University of Texas at Austin, the court ruled 4-3 upholding the university’s affirmative action program. In Friedrichs v. California Teachers Association, the court affirmed by a tie vote the rights of public unions to ask teachers to pay union dues. Had Gorsuch not been confirmed, the court would probably have ruled against the executive branch as well, when President Trump’s travel ban reaches certiorari.

Since Republicans hold both houses of Congress and the White House, it seems lopsided for a Supreme Court to hold so much power consolidated on the left — merely due to the absence of a conservative justice. This explains why Senate Majority Leader Mitch McConnell (R-Ky.) surprised many by holding firm to ensure Gorsuch’s confirmation. Gorsuch’s presence could reign in the left wing of the court, and ensure more of a balance between the three branches of government.

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