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ADF answers Missouri's claim that it is free to discriminate against religious preschool

Brief filed at US Supreme Court explains that govt doesn’t remain neutral on religion by treating religious entities worse than others

Monday, Aug 15, 2016
WASHINGTON – Alliance Defending Freedom attorneys representing a Missouri church filed a brief Friday with the U.S. Supreme Court that points out the deficiencies in the state of Missouri’s argument that it can discriminate against a religious preschool that sought to participate in what is supposed to be a religiously neutral playground safety program. The state filed a brief in June that argued its position.

In April, multiple parties, including 19 states and 34 members of Congress, filed friend-of-the-court briefs with the high court in support of ensuring that children aren’t denied the benefit of a playground safety program simply because a church owns the playground.

“A government isn’t being neutral toward religion when it treats religious organizations worse than everyone else,” said ADF Senior Counsel David Cortman. “Missouri argues that it is free to discriminate against churches, even when it comes to neutral playground safety programs, because Supreme Court cases say the government doesn’t always have to remain neutral between religious and non-religious organizations. The problem for the state is that those cases actually say the First Amendment allows the government to give religious organizations more favorable treatment, not less. Missouri shouldn’t be trying to pull a bait and switch when it comes to what the First Amendment says and what the Supreme Court itself has said.”

The case, Trinity Lutheran Church of Columbia v. Pauley, addresses the question of whether states can exhibit hostility to religion by prohibiting churches and church-run organizations from participating in government programs solely because the groups have a religious identity.

“To say that the religious and nonreligious children who play on this playground are somehow less worthy of this program than children who play on other playgrounds clearly makes no sense,” Cortman explained, noting that approximately 90 percent of the children who attend the preschool are neighborhood children who do not attend the church. “Using the state’s logic, the government could deny fire services or water treatment for churches. That’s clearly not what the state or federal constitution was designed to prevent.”

“The state admits that it blatantly excludes religious organizations from a safety program that has nothing to do with religion,” noted ADF Senior Counsel Erik Stanley. “That’s hostility to religion, which violates the U.S. Constitution.”

“One can hardly imagine a clearer case of discrimination than denying children a safe playground surface solely because they attend a religious preschool,” the ADF brief filed with the Supreme Court states. “Our Constitution prohibits reducing any group of citizens to second class status and excluding them from public life simply because they are religious. Yet the DNR does just that. This case is not about subsidizing or preferring religion. Protecting children from sharp playground surfaces is as far as one can imagine from a religious benefit. Instead, this case is about prohibiting religious status discrimination which violates the Free Exercise and Equal Protection Clauses.”

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 center solely because Trinity Lutheran Church operates it. Last year, the U.S. Court of Appeals for the 8th Circuit narrowly upheld a district court’s decision that ruled in favor of the state.

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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