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Supreme Court of the United States

You’re Never Too Young To Be Penalized For Your Faith

By Alan Sears posted on:
October 17, 2017

It really is astonishing, sometimes, to see the lengths to which government officials will go to enforce their often deeply misguided understanding of “separation of church and state.” In their consuming fear of government proselytizing, some elected officials and bureaucrats seem almost incapable of making any distinction whatsoever between, say, Congress passing a law requiring all Americans to become Lutherans and your child or grandchild playing tag on  a church playground.

We’re not making that last part up. In Columbia, Missouri, a Christian preschool was denied the right to participate in that state’s Playground SCRAP Tire Surface Material grant program not because its facilities didn’t qualify, but because the Department of Natural Resources decided that providing recycled SCRAP rubber surfacing to replace the gravel in that particular church play area would constitute government funding of religion.

In other words, state officials seem to believe they’re not allowed to help keep a child like yours from scraping his knees or bumping his head on hard ground, if that ground is owned by a church. That’s an interesting kind of discrimination, and one can’t help wondering where it stops. What other government services might decide, in time, that their civil purity is being corrupted by touching religious real estate? Could city police be barred from responding to a crime on church property? Could county firefighters refuse to use public hoses on church fires?

In January, Alliance Defending Freedom attorneys, representing the church in its lawsuit against state officials, presented oral arguments before the U.S. Court of Appeals for the 8th Circuit. They pointed out that the government is clearly not endorsing religion by simply providing SCRAP recycled tires to create a safer environment on playgrounds. What’s more, the same state constitution that prohibits preferential treatment of religion also prohibits religious discrimination – including the kind Missouri officials are exercising against the church. (Those officials have already admitted, in the course of the lawsuit, to allowing at least 15 other church-affiliated daycare centers to take part in the recycled tires for playgrounds program.)

“The children at this pre-school are no less worthy of the safety provided by the SCRAP tires this program offers than are children at other schools,” says Joel Oster, who argued the case and who (along with local counsel Michael K. Whitehead) is one of more than 2,500 private attorneys allied with ADF. “Contrary to what the state is arguing, the government is clearly not endorsing religion by simply providing recycled tires to create a safer environment on playgrounds. The state was right not to discriminate against the other 15 religious daycare centers, and it should not arbitrarily discriminate against this one.”

A different kind of government pressure has been applied to a Surprise, Arizona Christian school. For the last several years, the state’s Department of Economic Security (DES) has been saying that the school is liable for unemployment taxes – even though state law specifies that organizations operated primarily for religious purposes are not subject to those taxes.

Though aware of the law, DES officials had levied a $25,000 tax bill on the school, anyway – arguing that no preschool, elementary, or secondary school can have a primarily religious purpose because the primary purpose of a school is education, not religion.

ADF staff and allied attorneys representing the school appealed that interpretation and the tax bill to the DES appeals board, which reversed it, finding that the Christian school “presented evidence sufficient to establish that it is operated primarily for religious purposes.”

The board pointed out that assessing the taxes on the grounds that the day-care ministry’s “primary operating purpose cannot be religion, would make meaningless and unnecessary any existence of the statutory exceptions that have been enacted.” ADF applauds that decision.

“Christian schools shouldn’t live in fear of being punished by the government when they’ve not done anything wrong,” says ADF Senior Counsel Bradley Abramson, co-counsel in the case along with ADF allied attorney Wallace Larson. “The appeals board has reached the right conclusion in determining that this school should not have been sacked with a $25,000 tax bill that they do not owe."


Please be in prayer with us that such increasingly uncommon sense as the kind shown by this DES appeals board will spread throughout the nation’s courts and government, and that families like yours will continue to be given the opportunity to provide their children with Christian schooling in a nation that respects the constitutional protections designed to ensure our religious freedom.

Alan Sears

Alan Sears


Alan Sears served as founder of Alliance Defending Freedom, building on his experience as longtime leader of the organization to strengthen alliances, forge new relationships, and develop ADF resources.

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