Lawyers for a Missouri church and the state submitted letters on Tuesday arguing that a case before the U.S. Supreme Court should proceed as planned despite a recent rule change that raised questions about the lawsuit's relevance.
The Missouri Attorney General's Office and David Cortman, the lawyer for Trinity Lutheran Church, both submitted letters upon the high court's request to determine whether the case was merited after Missouri Gov. Eric Greitens announced last week that he would allow religious organizations to receive grants from the Department of Natural Resources.
The letters come the day before oral arguments are scheduled to begin Wednesday.
The church filed the original lawsuit because it was denied a Department of Natural Resources grant to purchase repurposed rubber tires for playground resurfacing.
The department denied the money because the state constitution prohibits public dollars from being used to aid religious organizations. Trinity Lutheran said in its lawsuit that the rule was unconstitutional because it violated the church's free speech rights and equal protections under the law.
But The American Civil Liberties Union and Americans United said the case should be over because Greitens' rule would allow the church to apply for the grant.
"There is no live controversy, and the case is moot," the joint letter says.
Cortman and Missouri Attorney General Josh Hawley's Office said the court should rule on the issue because the policy isn't permanent.
"The Governor of the Director of DNR — or, more likely, one of their successors — could reinstate the previous policy just as easily as the new policy was adopted," Hawley's letter said.
Both Hawley and Cortman implored the court to take the case, and Cortman said in a phone conference that he expects the justices to ask questions Wednesday about whether the case should be moot.
Hawley has recused himself from arguments because he has spoken in favor of the church, and his office could be required to defend the governor's policy in the future.
James Layton, who worked under the previous attorney general, will argue Missouri's case in front of the high court.
The governor's announcement came just days before long-awaited arguments that could have major implications for state constitutional provisions like Missouri's prohibiting public money from going to religious organizations. It will also be the first major event for Justice Neil Gorsuch, who was sworn in last week after a long nomination process in which Senate Democrats attempted to stall his nomination through a filibuster.
Some organizations say a ruling in the church's favor could break the final barrier to school choice programs such as vouchers, which give parents of students enrolled in public schools the option to receive a voucher to cover part or all of the costs of private school tuition.
When asked whether the timing of Greitens' rule change was strategic, the governor's spokesman Parker Briden said, "We just didn't want to leave in place a bad policy any longer than we had to."
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