Arent Fox Files Amicus Brief in Important Religious Liberties Case

Eighth Circuit Court of Appeals Asks State of Missouri to Respond to Petition for Rehearing
Washington, DC — Arent Fox LLP Appellate partner Thor Hearne, attorney Stephen Davis, and Law Professor Carl Esbeck filed an amicus curiae brief before the US Court of Appeals for the Eighth Circuit on behalf of the National Association of Evangelicals and the Christian Legal Society that argues principles of federalism require a Missouri state court to provide the first interpretation of an important religious liberties case.

Professor Esbeck teaches Constitutional Law at the University of Missouri and is a noted authority on religious liberty. After Arent Fox’s amicus brief was filed, the Eighth Circuit requested the State of Missouri to respond to the church’s petition for rehearing. 
The case stems from a Missouri program that uses recycled tires as rubber pellets to help make school playgrounds more safe. Trinity Lutheran Church operates a preschool and applied to participate, but the Missouri Department of Natural Resources denied the application because the preschool is run by a church. The Missouri DNR said it was forced to issue a denial because of the Blaine Amendment to Missouri’s Constitution, which dates from the late 1800s and contains two important provisions. The first prevents any discrimination against religious institutions and the second forbids state aid to religious institutions.
“Because no Missouri court has ever interpreted this important provision of our state constitution, principles of federalism require federal courts to abstain and allow the Missouri state court to provide the first interpretation,” said Mr. Hearne. “Because the two-judge majority gave the anti-aid provision of the Blaine Amendment a broad interpretation, it effectively nullified the anti-discrimination provision. We do not believe this is a correct interpretation of Missouri law and have asked the entire Eighth Circuit Court to review the decision and allow Missouri courts to first rule on the meaning of this provision of the state’s constitution.”
In Trinity Lutheran, Trinity Lutheran Church challenged the DNR’s denial of its ability to participate in the playground pellet program as a violation of provisions of the United States Constitution and the anti-discrimination provision of the Missouri Constitution. The three-judge panel of the Eighth Circuit split, with two judges ruling against Trinity Lutheran and Judge Raymond Gruender dissenting. In its appeal, Trinity Lutheran has asked the entire Eighth Circuit to rehear the case sitting en banc. Because of its importance, this case has attracted attention from prominent legal groups, including the Becket Fund for Religious Liberty, the American Civil Liberties Union, and Americans United for Separation of Church and State.
Arent Fox’s Appellate practice has successfully argued before courts at the federal and state level across the country, combining extraordinary legal experience with a multidisciplinary approach that enables the firm to represent a wide range of clients.

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