Days before the Supreme Court is set to hear Trinity Lutheran v. Pauley, Missouri Governor Eric Greitens instructed the Department of Natural Resources (“DNR”) to allow religious organizations to apply, and receive grants. Because of this new order, Trinity Lutheran may be mooted. Indeed, the Supreme Court just today called for the parties’ views on how Governor Greitens’ order affects their case.

I’ve recently written on this case here. But a short backgrounder is appropriate. Trinity Lutheran Church applied for a generally available grant from DNR to obtain materials to build a playground. Although Trinity Lutheran Church had one of the highest ranking applications, DNR denied the church a grant solely because it is a religious institution. DNR cited Missouri’s Blaine Amendment, a provision in its state constitution that prohibits Missouri from supporting religious groups. Thus, Trinity Lutheran Church sued DNR, alleging that it violated the Free Exercise Clause and the Equal Protection Clause by denying it a grant.

My initial impression is that Trinity Lutheran is mooted. Certainly, anyone who wants to keep this case going would bring up the voluntary cessation exception. This doctrine allows cases to go forward, even if they are otherwise mooted, if two conditions are met. First, the defendant must have changed its conduct because of the plaintiff(s)’ suit. Second, it must be possible for the conduct that the plaintiff(s) sued over to resume. Essentially, the voluntary cessation doctrine prevents parties from changing their conduct to moot a case, then resume the challenged conduct once the case is tossed.

It is clear that Governor Greitens issued his order because of Trinity Lutheran. But Trinity Lutheran Church’s grant application in this case will not be subjected to the alleged discriminatory action any longer. Certainly, religious liberty cases are the arguably the most contentious social issue today. That means a Democratic administration in four years may revive the position that religious institutions are ineligible for grants because of Missouri’s Blaine Amendment. But even if a future administration changes Missouri’s position, Trinity Lutheran Church’s grant that is at issue here will not be affected — the grant will likely have been either approved or denied by then.

Some may also raise the capable of repetition, yet evading review doctrine to mootness. But I don’t believe this doctrine applies either. This is a very narrow doctrine that has been applied when a case is mooted because of the natural length of litigation. Namely, this doctrine has been applied to abortion and affirmative-action cases. Trinity Lutheran Church’s alleged injury here — being denied a grant because of its religious affiliation — is not being mooted because its injury stopped due to the natural length of litigation. This case is being mooted because Missouri is changing its conduct.

Putting the legal issues aside, one might ask why a Republican governor put Trinity Lutheran in this position. After all, a victory for Trinity Lutheran could have been a boon for religious liberty advocates across the country. I speculate that Governor Greitens, like all humans, are risk averse. Certainly a good decision could help many. But a bad decision could embolden states that have been hostile to religious individuals. Simply, I imagine that Governor Greitens wanted to be sure that there are five votes in favor of Trinity Lutheran. And he didn’t see that.

I will certainly be disappointed if the Court holds that Trinity Lutheran is mooted. I did contribute to an amicus brief in this case and was anticipating a decision in June. But I remind my self that federal courts only have jurisdiction to decide cases and controversies. And one does not exist now.