Should public money go for that? Ginsburg asked whether that precedent was "passé".
The Missouri Attorney General's Office has recused itself from handling a U.S. Supreme Court case due to a conflict of interest. As I posted earlier in this preview, the case could significantly impact church-state law with regard to government funding of houses of worship.
That prospect worries groups of public-school teachers and others who oppose vouchers and other forms of public aid for private schooling.
The Missouri case is an attempt to lower that wall separating church and state. The Supreme Court has upheld similar funding prohibitions in the past, but here the church insists that its school was denied funding exclusively on account of its religious status - and that the funds it sought for tire scraps should've been granted because they wouldn't be used for religious instruction.
Gorsuch said the one thing that everyone in the case agrees upon is that the church was subject to discrimination by being told it could not participate in the program, which reimburses those that resurface their playgrounds through a state program that recycles old tires.
Those are legitimate objectives for the state in avoiding an unconstitutional entanglement with religion, Layton argued.
David Cortman, a lawyer for the conservative Alliance Defending Freedom, which is representing the church in the case, argued "that it is not rational to categorically exclude churches from neutral and otherwise generally available public benefit programs when their objectives and practical impact are entirely secular".
Justice Sotomayor pressed Cortman to explain how the church's free exercise of religion was being unconstitutionally violated, as it would not close its doors just because it had not received a reimbursement for the playground surface.
A 2004 Supreme Court decision, Locke v. Davey, allowed Washington state to offer college scholarships to all students except those pursuing a degree in devotional theology.
The church distinguishes its case from Locke v. Davey, arguing that the state funds in that instance were used to fund the religious training of clergy.
Missouri has a competitive grant program for organizations to improve their playgrounds.
If the Supreme Court were to rule against the church, its supporters say, that could give states justification to deny funds for other services, ranging from police and fire protection to soup kitchens and battered women's shelters.
The release went on to say Jim Layton, the former Missouri Solicitor General under Chris Koster, will represent the Department of Natural Resources going forward in this case and in the oral argument on Wednesday. "We believe that the First Amendment guarantees our religious freedom and it doesn't mean that any particular group should be singled out for worse treatment". The state funded 14 of the applicants, but not Trinity Lutheran.
Greitens' decision is a unsafe threat to religious freedom.
"State money could not be used to actually erect or operate or provide that kind of physical addition to a church or synagogue", Layton responded.
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".
Three-quarters of the USA states have provisions similar to Missouri's barring funding for religious entities.
A challenge to a 2015 court decision invalidating a Colorado voucher programme is pending before the justices, awaiting the Trinity Lutheran case's outcome.
Kagan endorsed those state provisions, however, arguing that because the conflicting concerns of discrimination and illegal state support of a church is a fraught and hard issue, there is "something attractive" about states having the right to decide for themselves. Wednesday's argument date was finally set February 17, shortly afterGorsuch's nomination. But there are questions over whether the nine justices will end up deciding the merits of the case after Missouri's Republican governor, Eric Greitens, last Thursday reversed the state policy that banned religious entities from applying for the funds. Reacting Friday to Greitens' last minute policy change, the Supreme Court wanted to hear from both sides if the state's reversal of policy affected the case. But this argument is incomplete: religious organizations benefit from all sorts of tax breaks, and the programs they run directly - even ones which don't seem obviously "religious" - are often categorized as part of their "ministry" in order to take advantage of those.