KANSAS CITY– Whitehead Law Firm, LLC, in Kansas City, has appealed to the U.S. Supreme Court on behalf of a Missouri church pre-school and daycare center that was discriminated against by 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 federal court’s decision that ruled the State of Missouri was justified in denying participation by 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 it is operated by Trinity Lutheran Church of Columbia, Missouri, Inc., pointing to a section of the state constitution that prohibits government aid to religion.
“The State’s only interest here should be children’s safety,” said Michael Whitehead, who represents the church along with Alliance Defending Freedom, a Scottsdale-based public interest law firm. “These kids skin their knees when they fall on the playground just like other kids. Preventing ‘owies’ on a pre-chool playground is not an establishment of religion. Denying tire scraps to these pre-schoolers because their folks put them in a church school smacks of religious discrimination.”
“Children’s safety is just as important on church daycare playgrounds as at other daycare playgrounds,” said ADF Senior Counsel Erik Stanley. “The state cannot single out this preschool for exclusion from the program because it is operated by a church. The U.S. Constitution prohibits this type of hostility to religion.”
“Seeking to protect children from harm while they play tag and go down the slide is about as far from an ‘essentially religious endeavor’ as one can get,” said Whitehead, quoting from the ADF petition. “The DNR’s religious exclusion sends a message that Trinity’s children are less worthy of protection simply because they play on a playground owned by a church. This is not a mild disapproval of religion.”
“Programs, such as the one in this case, that evenhandedly allocate aid to a broad class of recipients without regard to religion, generally do not violate the Establishment Clause; indeed this Court has held that singling out religious entities for exclusion is unconstitutional,” the petition continues, filed on Nov. 4.
The Supreme Court will receive briefing from the State, and from various “friends of the court,” before deciding whether to grant the appeal in the case of Trinity Lutheran Church of Columbia v. Pauley. A decision is expected within the next few months.
Michael Whitehead practices law in suburban Kansas City, often teaming with his son, Jonathan Whitehead, a Harvard-trained trial lawyer who is also an ADF ally. www.whiteheadlawllc.com. Michael Whitehead is also general counsel for the Missouri Baptist Convention.