Cross-posted from Balkinization

The Supreme Court will entertain argument tomorrow morning in Trinity Lutheran Church v. Comer.  The case involves a suit against the Director of the Missouri Department of Natural Resources (DNR), arising out of a decision DNR made in 2012 to disqualify the Trinity Lutheran Church (TLC) from receiving a grant under the Missouri Scrap Tire Grant Program (STGP).  The STGP provides a handful of competitive grants each year to preschools and daycare centers for the costs of using the rubber from old tires to resurface playground surfaces.  DNR did not simply decide one day, of its own accord, to exclude churches from the funding program.  Nor did the Missouri legislature impose such a disqualification.  Rather, such exclusion is required by virtue of three provisions of the Missouri Constitution—enacted in 1820, 1870 and 1875—that categorically bar the state from directly funding churches.  When TLC applied for a STGP grant in 2012, DNR denied that application because Trinity Lutheran is a church, and thus the Missouri Constitution prohibits Missouri from providing it with direct financial assistance.

As the amicus brief for the Baptist Joint Committee explains, such categorical funding prohibitions appear in the constitutions of at least 39 states.  (Disclosure:  I consulted with the BJC on this brief.)  The states mostly enacted these provisions before 1860, and they derive directly from Jefferson’s 1779 Bill for Establishing Religious Freedom in Virginia, which provided that “no man shall be compelled to . . . support any religious . . . place, or ministry whatsoever.”  (They are not, in other words, “Little Blaine Amendments.”  Those laws, enacted later in the Nineteenth Century, primarily concerned restricting aid to religious schools, most of which were Catholic.  Most of the categorical state bars on funding of churches, by contrast, became part of state law earlier, and obviously were not animated by anti-Catholic animus—after all, the overwhelming percentage of churches weren’t Catholic.  Nor were they grounded in hostility to religion generally:  As I discuss on this podcast with Tom Berg and Chris Lund, they were—like the Virginia Religious Freedom Bill—designed principally to protect the autonomy and integrity of churches, to preclude state administrators and legislators from making discretionary decisions for and against particular denominations, and to ensure that churches would not become embroiled in contests for scarce public aid.)

TLC sued the Director of DNR, raising claims under the Free Exercise and Equal Protection Clauses of the federal Constitution.  The court of appeals, relying primarily upon Locke v. Davey, held that although the federal Constitution itself does not prohibit Missouri from direct funding of a church, Missouri may impose such a categorical prohibition.  The Supreme Court agreed to hear the case, and the Court will entertain oral argument tomorrow morning.  (For what it’s worth, I think the Eighth Circuit was much too quick to assume that the Establishment Clause would not bar the funding.  The Supreme Court has never approved of direct state funding of a church—indeed, it’s something that has almost never been done in our nation’s history, until recently—and in his majority opinion for the Court in Rosenberger, Justice Kennedy cautioned that “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions” and that “[i]t is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse.”  In her controlling opinion in Mitchell v. Helms (2000), Justice O’Connor likewise wrote that there are “special dangers associated with direct money grants to religious institutions”—a “form of aid [that] falls precariously close to the original object of the Establishment Clause’s prohibition.”  See also Everson v. Board of Educ. (“The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused the[] indignation [of the freedom-loving colonials].”)

Last Friday, the new Governor of Missouri announced, on Facebook, that the Missouri DNR will no longer exclude churches from eligibility under the Scrap Tire Grant Program.  The Governor did not explain why DNR can or should do so, in light of the Missouri Constitution.  He did not, for example, conclude—not publicly, anyway—that the Missouri Constitution does not impose such a prohibition; nor did he contend that Missouri’s constitutional bar on funding of churches violates the federal Constitution.  Moreover, as far as the public record is concerned, there is no record of any communication from the Governor to DNR at all, let alone one that issues a directive or adopts a legal view.  Most importantly, perhaps, the record is silent, as far as I am aware, about whether the Director of DNR will abide by the Governor’s announcement and, if so, why.  (I do not know whether, under Missouri law, the Governor may direct the DNR Director to disregard provisions of the Missouri Constitution.)

The Supreme Court promptly asked the parties for “their views on whether this case is affected by the press release relating to access to Missouri grant programs issued by Governor Greitens on April 13, 2017.” 

Today, counsel for the Church filed this letter, arguing that the case is not moot under the Court’s “voluntary cessation” doctrine because “[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.” 

In another letter filed this morning, the Missouri Attorney General’s Office makes the same argument: that the case is not moot because the Governor, or the Director—“or, more likely, one of their successors—could reinstate the previous policy.”  Notably, the Missouri AG’s Office no longer the DNR Director’s counsel—in the very same letter, the AG’s Office informs the Court that it is recusing itself from the case, so that it might later be able to defend the DNR’s new policy!  (The AG’s Office has authorized James Layton—who was the Missouri SG until January, but who is now in private practice—to represent the DNR Director.  Layton will argue the case tomorrow.)  The letter concludes by stating, however, that the actual defendant in the case, DNR Director Carol Comer, has authorized the AG’s Office to represent that she “agrees with the conclusion of the Attorney Generals Office regarding mootness as expressed in this letter.”  The AG Office letter also states, without elaboration, that “the state agency is no longer denying benefits to organizations solely because of their religious affiliation,” although the Director herself has not said that.  Nor has Ms. Comer explained why she thinks it may be legal for her to provide a direct grant to a church, under Missouri law.

As for the merits of the letters’ argument that the case is not moot . . . I’m doubtful, for two reasons. 

First, in the ordinary “voluntary cessation” case, the defendant agrees to stop harming the plaintiff but does not concede that it would be unlawful to resume doing so—and it’s that prospect of future resumption that keeps the case alive.  As Justice Alito recently wrote for the Court in Knox v. SEIU, “[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed. . . . [H]ere, since the union continues to defend the legality of the Political Fight–Back fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future.”

In Trinity Lutheran, by contrast, presumably Ms. Comer will allow TLC to receive an STPG only because she has concluded that it would be unlawful to exclude TLC from eligibility – i.e., either because she construes the Missouri Constitution not to impose the prohibition (in which case she’d have no ground for disqualifying TLC, and such disqualification, without compulsion of a state constitutional rule, would likely violate the federal Constitution); or because she agrees with TLC that the federal Constitution prohibits such an exclusion of churches.  If Ms. Comer adopts one or the other of these views of the law, there is no reason to believe she will change those views in the near future, absent a ruling of the Missouri Supreme Court compelling her to do so (about which more below).  And if it is her view that she may not exclude TLC from the program, then the predicate of the “voluntary cessation” doctrine is not present.

Second, in the ordinary “voluntary cessation” case, the plaintiff is asking the defendant to stop doing something, and there’s a chance the defendant will resume doing the very thing that harms the plaintiff.  Here, by contrast, the plaintiff is in effect asking the state to provide it with something for a single, discrete purpose (to pay for its playground resurfacing). If it is true that the DNR will now allow TLC to be eligible to receive a grant to pay for its playground resurfacing, then TLC has received all of the injunctive relief that it sought in its complaint.  That complaint asked the court to “[e]nter a preliminary and permanent injunction enjoining the Defendant, her agents, servants, employees, officials or any other person acting in concert with her or on her behalf, from discriminating against the Church on future grant applications based upon the connection between the Church and the Learning Center, including applying the Blaine Amendment against the Church to deny it a grant for recycled tires because it is a church.”  If the Missouri AG Office letter is to be believed, the DNR will not discriminate against TLC because it is a church if and when it files a new application for an STGP grant.  Therefore TLC is now receiving the relief that it asked for.  (The complaint also seeks a declaratory judgment that the past denial of a grant in 2012 was unconstitutional.  TLC does not seek damages for that denial, however; and I don’t see how an abstract dispute about whether past conduct was constitutional is the sort of disagreement that would support Article III standing.)

To be sure, it’s theoretically conceivable that some future DNR Director will reverse course and once again disqualify TLC from receiving an STGP grant.  But there is no reason to believe Ms. Comer will do so, assuming she has concluded either that the Missouri Constitution does not impose a prohibition on funding churches, or that the state constitutional provisions violate the federal Constitution.  Presumably, TLC will once again apply for the grant in 2017.  (Indeed, if it didn’t have any existing plans to resurface the playground or to seek a grant, then it probably would lack standing to seek the prospective relief.)  If the facts or applicant pool have not changed much since 2012, it is likely to receive a grant this year.  (In 2012, TLC ranked fifth out of more than 40 applicants for one of the 14 available grants, after DNR assessed the applications based upon the the prescribed factors.)  And if it does receive the grant this year—or any time during Ms. Comer’s tenure in office—then the theoretical prospect of a future change in DNR policy is simply irrelevant, as far as TLC is concerned, because the resurfacing will already have been subsidized.  (I suppose it is theoretically possible that TLC will miss the cut this year, and every other year Ms. Comer is the Director, and that a future DNR Director will thereafter exclude TLC from consideration before it has received a grant—but that is awfully speculative, and presumably far down the road.)

The Missouri AG Office letter suggests another argument about why the case allegedly is not moot:  If and when the DNR does issue a grant to TLC, Missouri law would allow a taxpayer to sue in Missouri court to enjoin such a payment as unlawful under the Missouri Constitution; and (the letter implies) it’s possible that the Missouri courts, unlike the Governor and Ms. Comer, will actually enforce the Missouri Constitution’s three provisions banning direct funding to churches.  This prospect, of future state-court enforcement of the state constitution, is far more plausible than the notion that the DNR will voluntarily flip the switch again tomorrow.  It does not, however, suffice to keep alive the current case brought by TLC against the DNR Director.  If and when the Missouri Supreme Court enjoins Ms. Comer from making a grant to TLC, then Ms. Comer herself (and TLC) could petition for certiorari from that state court decision, and argue that the application of the Missouri Constitution violates the federal Constitution.  That would be a different case—one in which the U.S. Supreme Court would have the opportunity to resolve the federal constitutional questions with the benefit of the views of the Missouri Supreme Court on the proper application of the Missouri Constitution.

Nevertheless, there remains some uncertainty about Director Comer's views--and that uncertainty complicates the mootness question somewhat.  

For one thing, it is, I suppose, possible Comer will take the view in Court that she will not abide by the Governor's directive--that in her view, the Missouri Constitution does prohibit funding to churches, that the federal Constitution does not preclude such a no-funding rule, and that she is not required under Missouri law to do what the Governor tells her to do, so that she can abide by her own view of the law.  In that case, of course, the dispute would not be moot.

Alternatively, Comer might argue that although she continues to adhere to the views expressed in her brief -- that Missouri law requires disqualification of churches, and that such a disqualification is not constitutionally problematic -- nevertheless she has no choice under Missouri law except to implement the Governor's contrary directive.  If that is what her counsel argues tomorrow, I'm not sure that it would keep the case alive--after all, Ms. Comer's actions would provide the TLC with the relief it asked for, regardless of what her legal views might be--but the justiciability analysis would not be nearly as straightforward (that is to say, I haven't had time to think through what should happen in such a case!).

Stay tuned . . . .

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