Federal Takings

Arent Fox's Eminent Domain & Property Rights Practice

Federal Takings

Arent Fox Files US Supreme Court Amicus Brief in Important Civil Liberties Case


Arent Fox Files US Supreme Court Amicus Brief in Important Civil Liberties Case

Washington, DC — On April 21, Thor Hearne and Steve Davis of Arent Fox LLP filed an amicus brief before the US Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Pauley. This case will determine whether a church can be excluded as the recipient of a non-sectarian non-religious government program simply because it is a religious organization. Arent Fox’s brief can be found here.

Missouri recycles discarded tires as rubber pellets.  This program eliminates old tires from Missouri landfills and makes school playgrounds safer. Trinity Lutheran Church runs a preschool and applied to participate, but the Missouri Department of Natural Resources denied that request, citing a Missouri Constitution provision (the Blaine Amendment) that forbids aid to religious institutions. The Blaine Amendment dates from the late 1800s and contains two critical provisions:  the first prevents any discrimination against religious institutions and the second prohibits state aid to religious institutions. The constitutions of dozens of states contain Blaine Amendments, named for James G. Blaine, a speaker of the U.S. House of Representatives in 1875.

Appellate practice leader Thor Hearne and associate Stephen S. Davis filed the brief on behalf of the National Association of Evangelicals. They argued federal courts should avoid deciding novel issues of state law without first allowing Missouri courts to resolve the issue.

“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. “We are asking the Supreme Court to allow Missouri courts to first rule on the meaning of this provision of the state’s constitution.”

Should the Supreme Court rule upon the constitutionality of Missouri’s Blaine Amendment, Hearne argued the proper understanding of the prohibition against state aid to religious institutions is a prohibition against aid furthering the institution’s sectarian purpose. Neutral non-religious aid, such as rubber pellets for a playground, is not prohibited. Hearne explained, “If Missouri’s constitution prohibits the State from providing rubber pellets to make safer playgrounds, it would likewise prohibit the fire department from responding when a church caught fire. The notion makes no sense.”

Arent Fox’s Appellate practice group has argued in the U.S. Supreme Court, the U.S. Court of Appeals for various circuits, and numerous state supreme courts and lower courts of appeal.


Add the Arent Fox Rails to Trails blog to your RSS feed reader.


Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.