At first glance, Trinity Lutheran is about resurfacing children’s playgrounds. Missouri’s Scrap Tire Program offers state funds to nonprofit groups that replace playground surfaces with recycled rubber. The church applied to the program in 2012 to replace the gravel surface of its playground, but the state rejected its application, citing a clause in Missouri’s state constitution that bars the use of state funds “directly or indirectly, in aid of any church, sect, or denomination of religion.”
Trinity Lutheran Church argued that that provision violates the U.S. Constitution’s First Amendment by discriminating against religious organizations. Missouri countered that because it does not favor or disfavor any church over another, it meets the Establishment Clause’s standards. If the justices side with Trinity Lutheran, states could find it harder to avoid making grants to religious nonprofits with taxpayer money. The case is also being closely watched by school-choice advocates: A ruling limiting the Missouri constitution’s clause could weaken similar provisions in other state constitutions that block public funds from going to private religious-based schools.
Gorsuch’s approach to this case will be closely scrutinized. While serving on the Tenth Circuit Court of Appeals, his record suggested he’d be favorable to broader religious-freedom claims. In Hobby Lobby v. Burwell, a case targeting the Affordable Care Act’s contraceptive mandate, Gorsuch sided with the plaintiff’s view that the mandate burdened the company owners’ religious beliefs. (The Supreme Court subsequently ruled in Hobby Lobby’s favor on review.) Gorsuch also voted for the entire Tenth Circuit to review a three-judge panel’s ruling against the plaintiffs in Little Sisters of the Poor v. Burwell, one of a group of contraceptive-mandate cases heard by the Court in 2016 under the name Zubik v. Burwell. The justices ultimately sent Zubik, Little Sisters, and the other cases back to the lower courts for further hearings.
If a deadlock arises in any case already heard this year by the Court, the justices could schedule it for rehearing next term to include Gorsuch and break the 4-4 tie. One such case where the justices appeared to be sharply divided after oral arguments was Bank of America v. Miami, a racial-discrimination lawsuit challenging bank-foreclosure practices under the Fair Housing Act of 1968. Punting the case to the next term would give Gorsuch the opportunity to weigh in on the scope of a landmark civil-rights law.
His immediate influence won’t be limited to this term’s cases, either. On Thursday, Gorsuch will join the justices’ weekly conferences for the first time. There, the nine justices vote on which cases from lower courts they’ll accept for review and which petitions they’ll deny. Four votes are required to accept a case, even when the Court only has eight members, so his presence will likely restore the influence of the Court’s conservative wing when shaping the docket.