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Multiple states to US Supreme Court: Govt can’t show favoritism to non-religious preschoolers

Ten states express support for ADF lawsuit on behalf of Christian learning center excluded from Mo. playground safety program

WASHINGTON – Attorneys general from 10 diverse states filed a friend-of-the-court brief Monday with the U.S. Supreme Court in support of an Alliance Defending Freedom petition that asks the high court to review a lower court’s decision against a Missouri church pre-school and daycare center. The state of Missouri denied the center access to a state program that provides recycled tires to surface children’s playgrounds.

Earlier this year, the U.S. Court of Appeals for the 8th Circuit upheld a district court’s decision inTrinity Lutheran Church of Columbia v. Pauley that ruled the state was justified in denying the center because a church runs it. The 10 states – Nevada, Arizona, Arkansas, Colorado, Georgia, Montana, Ohio, Oklahoma, Utah, and Wisconsin – argue that the high court should grant the ADF petition and reverse that ruling.

“Children’s safety is just as important on church daycare playgrounds as it is on other daycare playgrounds,” said ADF Senior Counsel Erik Stanley. “The states who filed the brief Monday with the Supreme Court understand that the U.S. Constitution prohibits this type of hostility to religion.”

“As the states argue, the government must be as blind to faith as it is to color when it comes to programs serving religion-neutral purposes,” added ADF Senior Counsel David Cortman. “The state cannot single out this preschool for exclusion from the program simply because a church operates the school.”

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. The department pointed to a section of the state constitution that prohibits government aid to religion.

In their brief, the states point out that “the Court has taught, in many cases, that when it comes to generally available, neutral programs, the U.S. Constitution, especially its Free Exercise and Equal Protection Clauses, requires faith-blindness almost as rigorously as it does color-blindness. But some courts have…approve[d] interpretations of state provisions that, as here, arguably push ‘no aid’ into the realm of discrimination against religion.”

The brief goes on to explain that the 8th Circuit “split over whether…the Free Exercise Clause lets Missouri deny a church access to a generally available, neutral program that, even if the church participated, would have nothing to do with religion. Unlike refusing to fund clergy, refusing to protect children equally from injury because they play at a church has neither the sanction of history nor Mr. Madison,” referring to James Madison, the author of the Constitution’s First Amendment, which protects the free exercise of religion.

“Trinity Lutheran Church did not ask for new pews. It asked for ground-up tires to protect kids playing from injury,” the brief continues. “And in this respect it is similarly situated to every other preschool-daycare. The Missouri tire-recycling program, which aims at once to reduce landfills and injury to children, cannot serve any religious purpose…. When the benefits sought have no tie to religion, withholding those benefits from churches alone seems arbitrary and unfair.”

The Supreme Court also received friend-of-the-court briefs in support of Trinity Lutheran Church from the Ethics and Religious Liberty Commission of the Southern Baptist Convention, the Association of Christian Schools International, the Lutheran Church – Missouri Synod, the American Center for Law and Justice, and the Foundation for Moral Law.

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 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.