Supreme Court Hears Major First Amendment Case

This week the U.S. Supreme Court heard oral arguments in a major religious liberty case, and a number of observers are hopeful the justices will rule in a way honoring the equality of religious citizens. Trinity Lutheran Church of Columbia v. Comer features a Missouri church-run preschool that was discriminated against in a public playground re-surfacing program by the state of Missouri solely because it is a religious entity. Even though the preschool ranked as a highly qualified candidate for a grant under the program’s rules, the state cited a provision in its constitution – known as a Blaine Amendment – that prohibited it from supplying aid to a religion.

Representing Trinity Lutheran Church before the Court was NRB member Alliance Defending Freedom (ADF). ADF Senior Counsel David Cortman told the justices that Missouri had conceded that his client being a church is what led to its denial of the playground re-surfacing benefit. “This admitted discrimination against religion violates this court's free exercise principles,” he said.

Judging by their questions, a number of the justices seemed uncomfortable with the position of the state. Justice Samuel Alito pressed on whether houses of worship should be left out of security and post-terrorism rebuilding programs. The state’s attorney, James Layton, replied, “In the State of Missouri, it would not be permitted, provided that those were actually church buildings.” Reacting to the state’s arguments, Justice Elena Kagan said, “As long as you're using the money for playground services, you're not disentitled from that program because you're a religious institution doing religious things. And I would have thought that that's a pretty strong principle in our constitutional law.”

Justice Sonia Sotomayor sounded perhaps most sympathetic to Missouri’s argument. Notably, she raised the idea that the preschool would not be denied a playground by not getting a state grant. The state simply didn’t want to give money to the church. However, Cortman responded, “There's government coercion when you say there's a public benefit, and the only way you could receive that public benefit is if you do not exercise your religion.”

After the oral arguments, Annette Kiehne, director of the preschool, told reporters, “Here is something you learn very quickly, working with children: A kid is a kid. Playground time, for a child, is about play. And play should be safe; safety shouldn’t hinge on whether a child is religious or they are playing on a playground at a religious school or at a secular or public institution.” She added, “We aren’t asking for special treatment. We are just asking to not be treated worse than everyone else.”

At a rally on the Supreme Court steps during the oral arguments, NRB President & CEO Dr. Jerry A. Johnson said, “People of faith, religious people, are not second-class citizens.” He demanded, “Supreme Court, it’s your job to stop the bullies… there is a bully on the playground… the state of Missouri. Stop them. Make this right.”

Notably, last April, NRB joined several other organizations in filing an amicus curiae (“friend of the court”) brief pushing back on this example of government discrimination against people of faith. A final ruling on the case is likely to come in June.

By Aaron Mercer, Vice President of Government Relations

Published: April 21, 2017

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