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Supreme Court of the United States

Exclusive Interview with the Attorney Arguing Trinity Lutheran before the Supreme Court

By Sarah Kramer posted on:
October 17, 2017

We sat down with ADF Senior Counsel and Vice President of US Litigation David Cortman to talk about our upcoming case, Trinity Lutheran Church of Columbia v. Comer.

ADF filed suit against the state of Missouri for excluding Trinity Lutheran’s preschool from receiving a reimbursement grant to resurface its playground simply because of its status as a religious organization. Cortman will present arguments before the U.S. Supreme Court on April 19.


What’s at stake in this case?


The main principle at stake here is whether states can treat people of faith or religious organizations worse than others simply because they are religious.

A win is important in this case because the government should not be permitted to discriminate against people of faith or religious organizations simply because of their religious status. The Constitution doesn’t license the government to treat them as second class citizens. At a minimum, they should be treated equally, which is what we are asking for in this case.


What is a common misconception about this case?


One of the common misconceptions about this case is the thought that the government can never include churches or religious organizations when it comes to neutral benefit programs. But that is not what the Constitution requires, nor has the court ever held that it is impermissible to involve religious organizations or churches in such programs.

In fact, for decades, the court has permitted religious organizations to be included in these types of programs. To exclude them would be violating the Constitution by singling them out for discrimination based simply on their religious status.


What does "separation of church and state" have to do with this case?


The “separation of church and state” has taken on a life of its own far from its original intent. It was never meant to treat people of faith worse than everyone else, and that’s exactly what this program does. Not only is it a misinterpretation, but a person’s religious status should not even be in question when they are approaching the government for a neutral benefit.


What would you say to those who complain that churches don't pay taxes and therefore shouldn't receive any government benefits?


Historically, one of the reasons that churches and other not-for-profits are tax-exempt is because the government has rightly recognized that they provide much more to the community in the form of benefits and social services. Even though they may be tax-exempt, they put a significant amount of money back into the community, and because they provide those services, it saves the government from expending money and resources.

Additionally, the reimbursement program is funded by a small fee that Missouri citizens – including church members and the church itself – pay when they purchase new tires. The organizations wishing to receive this grant must apply through a neutral program that has many criteria that must be satisfied. What ends up happening is that church members and the church itself end up paying into this program, but because of their religious status are kept from participating in the program.


This is not the first time you’ve argued before the Supreme Court. What is it like?


It’s an extreme honor and privilege to do so. And I certainly take the opportunity very seriously – both in the preparations and expectations. It’s a daunting task to be able to perform in a satisfactory way for our clients, the Court, and others in the legal community.


How do you prepare for oral arguments?


Very, very meticulously. It entails hundreds of hours of preparation in reading all of the cases that are relied upon, knowing the history of the case itself, listening to previous oral arguments that have been argued in the relevant cases, and drafting and practicing the argument itself.


How does having Justice Neil Gorsuch confirmed to the Supreme Court affect the case?


Based on his past record, he seems to be a supporter of religious freedom, which is important and obviously should be beneficial in the case.

But we also think this case surpasses ideological differences because this is a principle that the entire Court should support. Simply because a person or organization chooses a certain faith does not mean the government can discriminate against them in a program they otherwise qualify for. Their religious status has nothing to do with protecting all of the children that use their playground. This equality principle should appeal to all of the justices.


How can we be praying for the oral arguments next week?


The entire team that is working on the case appreciates prayers for all of the work leading up to the oral arguments. Also, prayers for favor and for the resulting decision.


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Sarah Kramer

Sarah Kramer

Digital Content Specialist

Sarah worked as an investigative reporter before joining the Alliance Defending Freedom team.

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