Waiting for Gorsuch? Supreme Court finally schedules last major case
On Friday, the Supreme Court finally set an argument date for a major religious liberty case that’s been in limbo since Antonin Scalia’s passing. That could lead some court watchers to speculate the Court expects – or doesn’t expect – Neil Gorsuch on the bench by April 19.
Trinity Lutheran Church of Columbia v. Pauley
was one of the last cases considered by the late Justice Scalia in private conference. The Court accepted the case on January 15, 2016, and it had been in scheduling limbo since then. (The last brief in the Trinity Lutheran case was filed in August 2016.)
With the announcement this week that Gorsuch’s Senate hearings won’t start until March 20, there’s already been speculation that Gorsuch, if confirmed, may not be on the bench in time to hear the remaining cases in the Court’s term in late April.
Since 1975, the average length of the process between a presidential nomination and a final Senate vote for a Supreme Court nominee has been 67 days. President Trump nominated Gorsuch on January 31, which would put him on the bench, if confirmed, by April 10 – if the process takes about 67 days.
The Court is scheduled to meet in private conference on April 13, with arguments running from April 17 until April 26. However, with the current approval process in Washington moving slowly a delay in the Gorsuch nomination wouldn’t be unexpected. Also, the last nominee to make the hearings process, Elena Kagan, experienced an 87-day nomination process.
Regardless, the eight-member Court has decided to give the Trinity Lutheran case its own day in front of the Justices.
Trinity Lutheran case centers on a dispute about a church being denied a public government grant for recycled rubber material to use for safety purposes at its playground, which it shares with its local community.
The Court will try to answer the question of whether religiously affiliated schools can be constitutionally denied equal access to a government benefit, even if the benefit has nothing to do directly with matters of faith. The benefit is a program in Missouri that provides rubberized material for school playgrounds made out of old tires. Missouri’s constitution bars parochial schools from receiving such public benefits.
That provision in Missouri’s constitution is one of the Blaine amendments. The controversy over Blaine amendments has its origins in the presidential campaign of 1876. At the time, Republican candidate James G. Blaine sought anti-Catholic voters in his quest for the White House.
Blaine proposed a federal constitutional amendment that stated in part that “no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect.”
Blaine’s effort for a national constitutional amendment failed in Congress (as did his 1876 presidential campaign), but many states over the years adopted their own “Blaine amendments” in their own constitutions. About 35 states now have some form of a Blaine amendment on the books.
In recent years, the United States Supreme Court has made it clear that states can relax some of their Blaine amendment provisions, and they can provide some forms of neutral aid to religious institutions.
