The lawyers preparing to argue before the U.S. Supreme Court whether Trinity Lutheran Church can participate in a state grant program agreed on one thing Tuesday — that Gov. Eric Greitens’ directive changing state policy does not end the case.

The court will hear Trinity Lutheran’s challenge as the second case on its Wednesday docket. On Thursday, Greitens ordered the Missouri Department of Natural Resources to accept grant applications from religious organizations. Trinity Lutheran is contesting a 2012 decision denying it a grant for chopped tires to use as a safe playground surface.

Some legal analysts, reviewing Greitens’ directive, said it could render the case moot. But to end the case, the attorneys wrote in letters to the court, there would have to be no chance Greitens’ decision could be reversed.

“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,” wrote David Cortman, senior counsel for the Alliance Defending Freedom. Cortman and the alliance are providing the legal support for Trinity Lutheran.

“There is a realistic possibility that Missouri courts will enjoin any future payments to petitioner under the new policy absent a judgment from this court in favor of petitioner in this case,” wrote D. John Sauer, first assistant attorney general.

Sauer’s letter, which also informs the court that the office will have no more involvement in the case, was adopted by Jim Layton, the former solicitor general who will argue the case on behalf of the state. Attorney General Josh Hawley recused himself from the case in January because he had filed a friend of the court brief supporting Trinity Lutheran and the office is now off of the case because it will have to defend Greitens’ policy.

The Trinity Lutheran case is one of the most anticipated of the current court term. It raises issues of separation of church and state and whether individual states can make the barriers higher than the U.S. Constitution imposes. With the confirmation of Associate Justice Neil Gorsuch, the court is at full strength.

A major issue in the case is the provision of Missouri’s constitution that is a blanket prohibition on aid to religious organizations in any form by government at any level. The case being heard Wednesday questions whether that provision denies the church, in violation of the First Amendment, the ability to participate in civic life by obtaining a benefit available to other private organizations.

But whether the court will issue an expansive ruling on church-state issues or a narrow one solely aimed at the grant program is uncertain. In a conference call with reporters Tuesday, Cortman said the court looks for narrow grounds to make a ruling in most cases.

The grant program was open to not-for-profit preschools, a group that includes Trinity Lutheran, Cortman said. “Once it included the group that includes Trinity, we think it is wrong to eliminate them solely for religious reasons,” he said.

A broader ruling would look at how religion is treated generally when people or organizations seek to participate in government programs, he said.

“Just because a person is religious, or an organization is religious, that is not a license to treat them better or treat them worse,” Cortman said.

Layton, in an interview, said he will rely most heavily on a 2004 case from Washington state when the court decided the state could deny a scholarship to a student seeking a divinity degree.

“There the court said a state can restrict funding for some religious activities even if it grants funding for similar, non-religious activity,” Layton said.

rjkeller@columbiatribune.com

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