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Is Trinity Lutheran's Religious Freedom Suit Moot?

If you're a regular reader of this blog, you know that we've been impatiently awaiting oral arguments and, ultimately, a decision in Trinity Lutheran Church of Columbia v. Comer. The case is one of the most interesting of the term, both for its factual background (kindergartens! recycled tires!) and its constitutional questions (the extent to which churches may be denied access to otherwise generally available public programs).

After a long delay, the case is finally set for oral arguments this upcoming Wednesday. But now, given a last minute policy change by the governor of Missouri, the case could be moot.

God, Tires, and the Show Me State

When it comes to the separation of church and state, the Missouri Constitution goes further than its federal counterpart. Not only can there be no establishment of a state religion, but, the state constitution declares, "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church." Further, the state prohibits funding for "anything in aid of any religious creed," including funding for religious schools.

That's where the tires come in. Missouri's Department of Natural Resources operates a grant program that helps groups resurface their playgrounds with child-friendly rubber surface material, made with a minimum of 40 percent Missouri-generated scrap tires.

In addition to its church services, Trinity Lutheran operates both a daycare and a preschool. When it sought access to the resurfacing grant, its application was denied. Due to the restrictions in the Missouri Constitution, the Department of Natural Resources was "unable to provide this financial assistance directly to the church," it said.

The church sued, arguing that excluding it from the grant because it was a religious organization violated both the Free Exercise Clause and the Equal Protection Clause.

The DNR's decision was upheld by both the district court and the Sixth Circuit, with the later writing that the church "seeks an unprecedented ruling -- that a state constitution violates the First Amendment and Equal Protection Clause if it bars the grant of public funds to a church."

Mooted at the Last Minute?

Yesterday, however, Missouri Governor Eric Greitens reversed the state's position on churches and rubber playground resurfacing materials. In a video posted to Facebook, the governor said that the state would no longer "deny grants to people of faith who wanted to do things like make community playgrounds safer for kids."

Calling the exclusion of churches like Trinity Lutheran "just wrong," the governor instructed the Missouri DNR to allow religious organizations to receive grants.

Does the change in policy moot Trinity Lutheran's case? The governor's office doesn't seem to think so. "Today's action by Governor Greitens is not expected to affect the Trinity Lutheran case before the Supreme Court because the case involves a 2012 DNR decision that became final years before the Greitens administration took office," a press release from his office states.

Groups opposing the church's position disagree, according to SCOTUSblog's Amy Howe. You can expect the justices "to spend at least part of next week's oral argument exploring that question," she writes.

And, hey, even if we don't get a final resolution of Trinity Lutheran's case, we're at least sure to get an exciting oral argument.

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