This election gave us a surprise: President-elect Donald Trump. And he will nominate someone to fill a vacancy on the U.S. Supreme Court due to the passing of Justice Antonin Scalia. The stakes are high as the court prepares to hear important matters of constitutional law, including a case concerning religious liberty in Missouri, Trinity Lutheran Church of Columbia v. Pauley.
Last summer, Trump listed a number of individuals he would consider nominating to fill a Supreme Court vacancy. One of those names is Judge Raymond Gruender, a St. Louis native who now sits on the United States Court of Appeals for the 8th Circuit. And perhaps the best person to serve as the next Supreme Court justice is Gruender, whose dissenting opinion in Trinity Lutheran Church distinguishes him as an outstanding choice.
The fight concerns, of all things, shredded tires. A Columbia, Mo., church operates a daycare and preschool. It wanted to improve its children’s playground by taking advantage of a Missouri program that provides recycled scrap tires to replace playground surfaces.
When the church applied to receive the shredded tires to resurface its school’s playground, it was rejected for one reason — it was a church. Missouri has long had an amendment in its constitution that forbids the spending of public funds “directly or indirectly in aid of any church.” Missouri officials cited this provision when denying the church’s request. The church sued and alleged that Missouri had impermissibly infringed on its right to engage in the free exercise of religion under the First Amendment of the United States Constitution.
Missouri’s amendment is one of many “Blaine Amendments” still on the books in some states. In the late 19th century, Maine politician James Blaine led the charge to exclude religious institutions — mostly targeting Roman Catholics — from receiving government benefits. But these amendments are of dubious constitutionality: They single out religious institutions over all others.
The district court dismissed the church’s claim, and two of the three judges on the 8th Circuit panel that handled the appeal affirmed that dismissal. But Gruender’s dissent reflects the better approach, a careful and proper understanding of the Constitution and the law.
Gruender’s treatment of small but important technical matters bears mentioning. He recognized that the church sought a narrow form of relief: that this program violated the Free Exercise Clause, not that the Blaine Amendment was unconstitutional in all circumstances. His precise and measured approach addressed only the case before the court, nothing more.
And he cautioned against dismissing the case too early in the litigation process, which the district court had done. Gruender recognized that if the church plausibly claimed a basis for relief, the law permitted the church to have an opportunity to inquire into Missouri’s true motives for singling out churches. Later investigation of facts might change the outcome of the case, and Gruender recognized the perils of throwing out this case too early.
Gruender then turned to the specific details of the church’s claim. It is problematic under the Free Exercise Clause, he noted, if a state singles out a church and tells it that it cannot participate in a government program simply because it is a church. Gruender deftly navigated the Supreme Court’s messy, fact-driven precedents in this area before concluding that the state failed to articulate a sufficient basis to burden the church’s rights.
Missouri claimed that it was worried that it would appear to the public that it was favoring churches by giving them recycled tires for the preschool’s playground. Gruender explained that many government programs appropriately provide financial benefits to religious institutions. And in the instances where the Supreme Court has permitted states to single out and exclude churches from receiving government benefits, it is because the church is doing something exclusively or overtly religious. Here, Gruender explained, “schoolchildren playing on a safer rubber surfaced made from environmentally-friendly recycled tires has nothing to do with religion.”
The Supreme Court overturns about two-thirds of lower courts’ decisions in the cases it chooses to hear. That means that if there is a dissenting opinion in a case it chooses to hear, it often adopts the outcome articulated in that dissenting opinion. If Gruender’s dissenting opinion in Trinity Lutheran Church has favorably attracted the attention of the justices already on the Supreme Court, perhaps it is time to consider nominating him so that he might join them.