Both sides urge court to go ahead in church-state case

Last week, Missouri Governor Eric Greitens announced that the state had reversed course on the policy at the heart of Trinity Lutheran Church of Columbia v. Comer: Going forward, the states Department of Natural Resources can award grants to religious groups to fund programs like the recycled rubber playground surfaces for which Trinity Lutheran applied in 2012. But, the governors press release emphasized, the new policy did not affect the churchs case, which is slated for oral argument tomorrow. In briefs filed this morning at the courts request, both the state and the church agreed that the case should go forward.

Trinity Lutheran maintains that last weeks announcement should have no effect on its case. The fact that a defendant has voluntarily stopped doing something, it emphasizes, does not mean that a federal court now lacks authority to decide whether the defendants actions are illegal. A case like this one is moot only if the state can show both that there is no reason to believe that the challenged conduct will happen again and the effects of the conduct have been completely and irrevocably eradicated.

But here, Trinity Lutheran reasons, if a new governor were to take office, she could reinstate the old policy of excluding churches. Moreover, even if the old policy is no longer in effect, the provision of the Missouri constitution that gave rise to the policy remains in place, which means that a lawsuit challenging the new policy is likely to follow.

The states rationale for allowing the case to go forward closely resembles the churchs, right down to the cases that it cites. Indeed, it agrees with the church that, even if the state is no longer denying benefits to nonprofits solely because of their religious affiliation, there is nothing to keep the agency from restoring the policy in the future in essence, current or future state officials could change their minds. And it observes that there is no guarantee that the church could actually receive the funds it seeks in the future, because of the strong prospect that someone will challenge the new policy.

With both sides briefs now in hand, the justices could in theory if they were so inclined act on the case before tomorrow mornings oral argument. But they are more likely to forge ahead with the scheduled argument and decide what to do about the governors policy reversal later. We can be fairly confident, though, that they will have plenty of questions tomorrow, about both the constitutionality of the old policy and the governors decision to implement a new one.