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Supreme Court of the United States

This Preschool was Denied Access to a State Program Simply for Being Religious

By Kevin Theriot posted on:
October 17, 2017

Last month, the State of Missouri filed a brief in the U.S. Supreme Court admitting it singles out churches for discrimination based on their “religious status.” Now Alliance Defending Freedom (ADF), on behalf of Trinity Lutheran Church, has responded to that brief.

Trinity Lutheran’s preschool was denied access to Missouri’s recycling program that uses old tires to, among other things, make playgrounds safer for children. The only reason? The church runs the preschool.

Missouri argued that it is free to discriminate against churches because Supreme Court cases say the government doesn’t have to remain neutral between religious and non-religious organizations. But those cases actually say the First Amendment allows the government to give religious organizations more favorable treatment, not less.  For instance, in Hosanna-Tabor v. EEOC, a unanimous Court rejected the federal government’s argument that, as long as religious schools are treated the same as other similar secular employers like labor unions and social clubs, there is no First Amendment violation.  Instead the Court held “the text of the First Amendment itself …gives special solicitude to the rights of religious organizations.”

Yet Missouri argued it can treat churches less favorably just because they are religious and that, somehow, this does not burden their religious freedom.  If this were the law, it could give churches less access to any government benefit, including use of roads, for example, just because of their religious status.  This is exactly why the Founding Fathers cemented the right to freedom of religion in the Constitution. They experienced firsthand that governments often lose their way and single out religious organizations like Trinity Lutheran and its preschool for discrimination.  Churches trying to make sure their children have safe playgrounds shouldn’t be ineligible for a government benefit just because of their religious status.

If anything, they should be treated more favorably because religious liberty is foundational to all freedoms.  Regarding America’s experiment with freedom, Alexis de Tocqueville observed in 1835, “Freedom sees in religion the companion of its struggles and its triumphs, the cradle of its infancy, the divine source of its rights. It considers religion as the safeguard of mores; and mores as the guarantee of laws and the pledge of its duration.”


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Kevin Theriot

Kevin Theriot

Senior Counsel, Vice President of Center for Life

Kevin Theriot serves as senior counsel and vice president of the Center for Life with Alliance Defending Freedom

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