Now the more conservative court is being urged to rule that excluding church schools from state funding programs that are open to others violates the 1st Amendment's guarantee of the "free exercise" of religion and denies them the equal protection of the laws.
The court will hear Trinity Lutheran's challenge as the second case on its Wednesday docket.
What was unclear from the argument was whether the justices would rule broadly in favor of church schools, or focus narrowly on the playground because it had nothing to do with worshipping or teaching religion.
Three-quarters of the US states have provisions similar to Missouri's barring funding for religious entities. The church sued and lost in the 8th Circuit Court of Appeals, and then appealed to the nation's highest court.
Missouri's constitution bars "any church, sect or denomination of religion" from receiving state money, language that goes further than the Constitution's First Amendment separation of church and state requirement. The Court agreed to hear Trinity's appeal well over a year ago, shortly before Justice Scalia passed away.
Last week Missouri Gov. Eric Greitens announced he was reversing the DNR's policy and allowing religious organizations to apply and be eligible for grant funds. The state, however, denied the application despite having a program that provides funding for this objective. And I just wanted to ask you about some Federal laws that are highlighted in the amicus brief filed by the Union of Orthodox Jewish Congregations, and get your reaction whether a program like that would be permissible under the Missouri constitution.
That raised a question for the Court about whether the case was still active- and today's hearing is likely to begin with that issue.
The battle between church and state is moving from the playground to the Supreme Court.
What does this have to do with Colorado?
Layton suggested one difference is that the playground program involves a direct payment to the church.
A decision in the case is expected by late June.
Former Missouri Supreme Court Justice Mike Wolff believes it does.
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NY has, over the decades, chipped away at its Blaine Amendment; a 1967 ruling by the state's highest court rightly upheld a program requiring school boards to loan textbooks to all students, public, private and religious - because the program was "meant to bestow a public benefit upon all school children, regardless of their school affiliations".
Instead, an intense hour of oral arguments focused on the merits.
"How can the church be disentitled to qualify for a statewide program exclusively because it's a religious institution?" asked Justice Elena Kagan.
Besides the Trinity case at hand, the Supreme Court in coming days could accept two other religious liberty disputes for future review: Whether a Colorado baker and a Washington state florist can be compelled to do business with same-sex couples, which they say would violate their "sincerely held" religious beliefs.
Thirty-nine states have constitutional provisions limiting state aid to religious groups, Sotomayor noted. Trinity claims there is no such compelling state interest, because (the church argues) the grant would be permissible under the federal Establishment Clause. "Nearly 40 state constitutions have similar constitutional provisions that opponents of school choice have tried to invoke in the past to halt school choice programs in their tracks", he said.
Layton said, "Wherever the line is, writing a check that says "payable to Trinity Lutheran Church" ought to be on the other [unconstitutional] side of it".
Missouri is among roughly three dozen states with constitutions that explicitly prohibit using public money to aid a religious institution, an even higher wall separating government and religion than the U.S. Constitution erects.
The Supreme Court doesn't always see eye to eye when messy issues of church and state collide.
She later asked why the case is not already moot.
This dichotomy bothered Gorsuch, who asked, "How is it that discrimination on the basis of religious exercise is better in selective government programs than general programs?"
Justice Sonia Sotomayor was perhaps the sharpest in her questioning of David Cortman, the attorney representing the church, arguing that Trinity Lutheran seems "to be confusing money with religious practice".
A victory at the Supreme Court for Trinity Lutheran could help religious organizations nationwide win public dollars for certain purposes, such as health and safety.