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ADF to Supreme Court: Govt isn’t neutral if it treats the religious worse than everyone else

ADF files opening brief on behalf of Missouri church that runs pre-school excluded from children’s playground safety program.
Should the Supreme Court Prioritize the Safety of Non-Religious Preschoolers over Religious Ones?

WASHINGTON – Alliance Defending Freedom filed its opening brief with the U.S. Supreme Court Thursday in a case that addresses the question of whether states can exhibit hostility to religion by prohibiting churches and church-run organizations from participating in state programs solely because the groups are religious.

ADF attorneys represent a church that operates a pre-school and daycare center. The state of Missouri excluded it from a program that provides recycled tire products to surface children’s playgrounds. In January, the high court agreed to take up the case.

“Religious neutrality doesn’t mean treating religious organizations worse than everyone else,” said ADF Senior Counsel David Cortman. “The state’s categorical exclusion of religious daycare centers and preschools from the Scrap Tire Grant Program is discrimination based on religious status, and that violates the First Amendment. It isn’t neutral for the state to impose special burdens on non-profit organizations with a religious identity.”

“Children’s safety is just as important on church daycare playgrounds as it is on other daycare playgrounds,” added ADF Senior Counsel Erik Stanley. “Excluding Trinity Lutheran from this program exhibits an undeniable hostility to religion that violates the Constitution’s essential mandate of religious neutrality.”

Last year, the U.S. Court of Appeals for the 8th Circuit upheld a district court’s decision in Trinity Lutheran Church of Columbia v. Pauley that ruled the state was justified in denying the center because a church runs it.

Trinity Lutheran Church Learning Center in Columbia sought to participate in the 2012 Playground Scrap Tire Surface Material Grant Program. The center wished to remove and replace a large portion of the pea gravel surfacing on its playgrounds with a safer, recycled, pour-in-place rubberized product. The Missouri Department of Natural Resources disqualified the learning center solely because Trinity Lutheran Church of Columbia, Missouri, Inc., operates it.

According to the ADF brief, the department’s disqualification “violates the United States Constitution’s free exercise and equal protection guarantees. And it does so even though including religious entities in the program would equally further the state’s goals of keeping tires out of Missouri’s landfills and fostering children’s safety. A rubber playground surface accomplishes the state’s purposes whether it cushions the fall of the pious or the profane. The DNR’s categorical exclusion of religion in this case is unvarnished status-based discrimination that violates the Free Exercise and Equal Protection Clauses.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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David A. Cortman
David A. Cortman
Senior Counsel, Vice President of U.S. Litigation
David A. Cortman serves as senior counsel and vice president of U.S. litigation with Alliance Defending Freedom.