UNITED STATES DISTRICT

FOR THE WESTERN DISTRICT OF MISSOURI

AMERICAN ATHEISTS, INC., ERIC ABNEY )
and JOSHUA STEWART,
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF KANSAS CITY, MISSOURI,
)
CITY COUNCIL OF THE CITY OF KANSAS )
CITY, MISSOURI, SYLVESTER SLY
)
JAMES, JR., in his official capacity as
)
he is MAYOR OF KANSAS CITY, MISSOURI )
and TROY SCHULTE in his official
)
capacity as he is CITY MANAGER OF
)
KANSAS CITY, MISSOURI
)
)
Defendants.
)
)

Case No. _____________

PLAINTIFFS SUGGESTIONS IN SUPPORT OF MOTION FOR PRELIMINARY AND

PERMANENT INJUNCTIONS

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TABLE OF CONTENTS
I. Introduction ............................................................................................................................................... 1
II. Argument .................................................................................................................................................. 1
A. There is a substantial likelihood that Plaintiff will succeed on the merits. .......................................... 2
1. State Action ....................................................................................................................................... 3
2. The Establishment Clause ................................................................................................................. 3
3. Article I, Section 7 and Article IX, Section 8 of the Missouri Constitution ..................................... 6
4. The Equal Protection Clause ........................................................................................................... 11
B. The movant will suffer irreparable harm unless the Preliminary Injunction are issued. .................... 12
C. The balance of equity weighs in Plaintiffs favor. ............................................................................. 14
D. The requested relief is not adverse to public interest. ........................................................................ 14
III. Conclusion ............................................................................................................................................ 15

ii

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TABLE OF AUTHORITIES
Cases
ACLU v. Sebelius .......................................................................................................................................... 9
Agostini v. Felton ...................................................................................................................................... 3, 9
American Atheists v. City of Detroit ............................................................................................................. 3
Americans United v. Rogers ......................................................................................................................... 8
Bereghorn v. Reorg. Sch. Dist. No. 8 ............................................................................................................ 7
Berry v. City of New York ........................................................................................................................... 13
Brusca v. State of Mo. ex rel. State Bd. of Educ. .......................................................................................... 7
Dataphase Sys., Inc. v. C.L. Sys., Inc. ........................................................................................................... 2
Deerfield Med. Ctr. v. City of Deerfield Beach........................................................................................... 13
Elrod v. Burns ............................................................................................................................................. 13
Flast v. Cohen ............................................................................................................................................... 3
H&R Block Tax Servs. LLC v. Haworth ..................................................................................................... 15
Harfst v. Hoegen ........................................................................................................................................... 7
Intl Soc'y for Krishna Consciousness v. Kearnes ...................................................................................... 14
Kirkeby v. Furness ...................................................................................................................................... 13
Kroupa v. Nielsen.......................................................................................................................................... 1
Larson v. Valente ........................................................................................................................................ 12
Lemon v. Kurtzman ....................................................................................................................................... 3
Locke v. Davey .............................................................................................................................................. 9
Luetkemeyer v. Kaufmann ......................................................................................................................... 7, 9
Maceira v. Pagan ........................................................................................................................................ 13
McVey v. Hawkins..................................................................................................................................... 7, 9
Medicine Shoppe Int'l, Inc. v. S.B.S. Pill Dr., Inc. ........................................................................................ 2
Mills v. District of Columbia ...................................................................................................................... 13
Mitchell v. Helms .......................................................................................................................................... 3
Newsom v. Albermarle County Sch. Bd. ..................................................................................................... 13
Noodles Dev., LP. v. Ninth St. Partners, LLP ............................................................................................... 2
Nuxoll v. India Prairie Sch. Dist. #204 ....................................................................................................... 13
Paster v. Tussey ........................................................................................................................................ 6, 7
Phelps-Roper v. Nixon .................................................................................................................................. 2
Planned Parenthood Minn. v. Daugaard .............................................................................................. 13, 14
Prudential Inc. Co. of Am. v. Inlay ............................................................................................................... 2
R.G. v. Koller .............................................................................................................................................. 14
Sammartano v. First Judicial Dist. Court ................................................................................................... 13
Scott v. Roberts ........................................................................................................................................... 13
St. Louis Univ. v. Masonic Temple Assn of St. Louis................................................................................... 8
Stalker v. PHH Mortg. Corp. ........................................................................................................................ 2
Stilp v. Contino............................................................................................................................................ 13
Trinity Lutheran Church of Columbia, Inc. v. Pauley ......................................................................... passim
Tucker v. City of Fairfield ........................................................................................................................... 13
Waites v. Waites .......................................................................................................................................... 12

Statutes
Kansas City Code, 2-932 - 934, 939 .................................................................................................. 4, 11
Mo. Const. Art. I, 7 & Art. IX, 8 ............................................................................................ 6, 7, 10, 11
U.S. Const. amend. I ..................................................................................................................................... 3
U.S. Const. amend. XIV, 1 ...................................................................................................................... 11
iii

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Rules
Fed. R. Civ. P. 65 .......................................................................................................................................... 2

iv

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I. Introduction
1.

Pursuant to Federal Rule of Civil Procedure 65(a), Plaintiffs American Atheists,

Inc., Eric Abney, and Joshua Stewart move for a Preliminary Injunction enjoining Defendants from
paying any public monies to Modest Miles Ministries, Inc. under Ordinance No. 160291, which
authorizes $65,000 in municipal funds from the Neighborhood Tourist Development Fund
(NTDF) for and in support of the National Baptist Convention, USA, Inc.s (National Baptist
Convention) religious event in Kansas City, Missouri in September 2016.
2.

Plaintiffs pray this Court grant the requested relief barring the unconstitutional

payment to Modest Miles Ministries because Defendants authorized the grant for the sole purpose
of providing indirect aid and support to a pervasively sectarian organization comprised of member
Baptist churches and church auxiliaries for its local religious event. Defendants grant of municipal
taxpayer monies for religious purposes demonstrates municipal preference for the Baptists over no
religion and preferential treatment of the Baptists over the Lutherans by officials under color of
state law with respect to neutral public benefit programs in Missouri.
3.

If paid, this municipal expenditure would violate Plaintiffs right to be free from

compelled support of religious institutions, Plaintiffs right to be free from the establishment of
municipal support of one religion over none, and Plaintiffs right to be free from governmental
preference for one religion over another with respect to neutral public benefit programs under
Missouri law in violation of the First and Fourteenth Amendments to the United States
Constitution and Article 1, Section 7 and Article IX, Section 8 of the Missouri Constitution.
II. Argument
A district court has broad discretion in ruling on requests for preliminary injunctive relief.
Kroupa v. Nielsen, 731 F.3d 813, 818 (8th Cir. 2013) (citing Medicine Shoppe Intl, Inc. v. S.B.S.

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Pill Dr., Inc., 336 F.3d 801, 803 (8th Cir. 2003). This Court may issue a preliminary injunction
only on notice and after a hearing on the motion. Fed. R. Civ. P. 65(a).
In determining whether to grant a preliminary injunction, the Court considers (1) the threat
of irreparable harm to the movant; (2) the balance between this harm and any injury that granting
the injunction will inflict on the non-moving party; (3) the likelihood that the moving party will
prevail on the merits; and (4) the public interest. Stalker v. PHH Mortg. Corp., 2013 U.S. Dist.
LEXIS 134716, *2-3 (W.D. Mo. Sept. 20, 2013); Phelps-Roper v. Nixon, 509 F.3d 480, 484 (8th
Cir. 2007); Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981); Prudential Inc.
Co. of Am. v. Inlay, 728 F. Supp. 2d 1022, 1028 (N.D. Iowa 2010). No single factor is
determinative, they must be balanced to determine whether they tilt towards or away from
granting the injunction. Stalker, 2013 U.S. Dist. LEXIS 134716, *2-3 (quoting Noodles Dev., LP.
v. Ninth St. Partners, LLP, 507 F. Supp. 2d 1030, 1034 (E.D. Mo. 2007)).
In this case, Plaintiffs move for a Preliminary Injunction to enjoin Defendants
unconstitutional expenditure of municipal taxpayer funds for and in support of the National Baptist
Convention, a sectarian organization holding a religious event in Kansas City in September 2016.
Plaintiffs notified Defendants of their intent to file this Motion by letters of April 22, 2016, June
16, 2016 and July 20, 2016, and requested a hearing on same pursuant to Fed. R. Civ. P. 65(a).
A. There is a substantial likelihood that Plaintiff will succeed on the merits.
Because the merits question may be dispositive, the Court should consider it first. In this
case, Plaintiffs have a substantial likelihood of success on the merits of their First and Fourteenth
Amendment claims as well as their Missouri constitutional claims. The City of Kansas Citys
approval of a grant in the amount of $65,000 from the public treasury for the express purpose of
aiding and supporting a sectarian organizations religious event, which is admittedly used to

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inculcate the organizations religious beliefs to attendees, constitutes an unconstitutional

municipal expenditure in violation of the Establishment Clause of the First Amendment to the
United States Constitution as incorporated to the states through the Fourteenth Amendment as well
as Article I, Section 7 and Article IX, Section 8 of the Missouri Constitution.
1. State Action
Each and all of the acts alleged of Defendants Mayor Sly James, City Council, and the City
Managers Office, which manages the NTDF program, their members, agents, servants,
employees, or persons acting at their behest or direction, were done and are continuing to be done
under the color of state law and pursuant to the City Charter, ordinances, rules, customs, policies,
and practices of the City of Kansas City, a subordinate municipality of the State of Missouri.
2. The Establishment Clause
No state or subordinate municipality shall make any law respecting an establishment of
religion . . . . U.S. Const. amend. I. The Ordinance at issue in this case goes to the very heart of
what James Madison and his supporters sought to prevent in drafting the Establishment Clause:
that religious liberty ultimately would be the victim if government could employ its taxing and
spending powers to aid one religion over another or to aid religion in general. Flast v. Cohen,
392 U.S. 83, 103-04 (1986) (emphasis added). Even where a program appears neutral on its face,
it may betray the purpose or primary effect of advancing religion in general or one religion in
particular, and when that is true, the program must be invalidated. American Atheists v. City of
Detroit, 567 F.3d 278, 302 (6th Cir. 2009).
The Establishment Clause requires municipalities to enact ordinances that (1) are neutral
as to religion, (2) do not have the purpose of advancing religion and (3) do not have the primary
effect of advancing religion. Id. at 288-89; Mitchell v. Helms, 530 U.S. 793, 838-39 (2000);
Agostini v. Felton, 521 U.S. 203, 222-23 (1997); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
3

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Here, Ordinance No. 160291 is not neutral on its face because it intentionally aids a Baptist
institution and its mission to fulfill the Great Commission of Jesus Christ through preaching,
teaching, and healing. See Exhibit A; http://www.nationalbaptist.com/about-us/mission-objectives.html (last visited July 7, 2016). In this case, Defendants knew or should have known
that the National Baptist Convention is a religious organization comprised of member Baptist
churches and church auxiliaries and that the Baptist Convention, for which the funds were
requested, is a pervasively religious event. See http://www.nationalbaptist.com/meetings-events/annual-session/ (last visited July 7, 2016); Exhibit B (Modest Miles Ministries application
materials). Further, Defendants knew or should have known that membership in the national
religious organization is required to attend the Baptist Convention. Id.
The express language of the Ordinance states its purpose is to aid and support the national
religious institutions Baptist Convention. The application materials indicate that religious
activities and indoctrination of religious beliefs will occur at all but three events held during the
Baptist Convention. The requested municipal funding would be used to provide transportation for
initiated members to these religious events. All of these facts, which Defendants knew or should
have known, cause the grant approved in Ordinance No. 160291 to fail to meet NTDF program
criteria under 9-232, et seq. See, e.g., Kansas City Code, 2-932(2) (projects should be open
to the general public); -933 (project must demonstrate that it encourages broad based citizen input
and participation); -934(a) (NTDF funding may be awarded only for neighborhood tourist
development activities including and limited to cultural, social, ethnic, historic, educational and
recreational activities. . . .); -934(b) (project must provide a clear, geographical definition of the
sponsoring neighborhood as well as the neighborhood serving as beneficiary of the funded

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activity); -939(b) (travel expenses for the organizations staff and members not eligible expense
for funding under NTDF program).
Furthermore, Defendants knew or should have known that the National Baptist Convention
imposed a funding requirement in the amount of $65,000 on the City and/or the Host Committee
apparently as a condition precedent to the national religious organization agreeing to hold its event
in Kansas City. See Exhibit D. Pastor John Modest Miles is President of Modest Miles Ministries
and Chairman of the National Baptist Conventions Local Host Committee. It is not clear whether
the City or Pastor Miles Host Committee originally obligated itself to cover the $65,000 funding
requirement for the National Baptist Conventions travel costs in order for the religious
organization to choose Kansas City as its host. Even if this funding requirement was not
communicated to the City until presented by Modest Miles Ministries through backdoor channels
in its NTDF funding application, Modest Miles Ministries application for public aid for a discrete
religious purpose under the guise that it is a grant to a local charitable organization undermines
Defendants intent in passing Ordinance No. 160291. See Exhibits C, D, E (Modest Miles
Ministries NTDF application letter actually on National Baptist Convention Host Committee
letterhead, submitted on behalf of Pastor Miles in his capacity as Chairman of the Host Committee,
and disclosing that all government funds would go directly to Host Committee bank account and
not to Modest Miles Ministries). Such established municipal support of the Baptist group is
reinforced by the Citys previous awards of public monies from the NTDF for the Baptist
Convention in 1998, 2003 and 2010. See Exhibit B, p. 3 ($77,585.00 in 2010; $142,000.00 in 2003;
$100,000 in 1998).
Accordingly, Ordinance No. 160291 was passed in spite of the fact that it does not comply
with NTDF program criteria, the Establishment Clause, or the State of Missouris strict

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constitutional prohibition against public aid to religious institutions or purposes. See Mo. Const.
Art. I, 7 & Art. IX, 8 (prohibiting indirect municipal aid to a religious institution or purpose).
Thus, Defendants Ordinance is not neutral to religion. Notwithstanding, even if the Ordinance
was neutral on its face (and it is not), the disputed grant was made for the express purpose of aiding
and supporting the Baptist organization and has the primary effect of advancing same. The
ordinance advances the national Baptist institutions purpose and theological instruction through
reimbursement of travel costs of its staff, member-attendees and church delegates to the plenary
sessions, which comprise the majority of the Baptist Convention events and during which religious
activities, prayer and preaching take place. By covering this expense of the Baptist organization
(or its sectarian Host Committee), the City enables the religious organization(s) to use those funds
to otherwise further its religious purpose.
Because Ordinance No. 160291 is not neutral to religion and the aid approved therein
would be used predominantly for religious purposes, it effectively establishes municipal support
for the Baptist religion over no religion in violation of the Establishment Clause. The Citys prior
support of this very institution and event only reinforces said establishment. Ordinance No. 160291
effectuates that which the founders sought to prevent by way of the Establishment Clause
government preference of one religion over another or none at all.
3. Article I, Section 7 and Article IX, Section 8 of the Missouri Constitution
Even more restrictive than the Establishment Clause, the Missouri Constitution requires a
heightened separation of church and state. Trinity Lutheran Church of Columbia, Inc. v. Pauley,
788 F.3d 799, 783-84 (8th Cir. 2015) (quoting Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo.
1974) (a bedrock principle of state law for nearly 150 years.)). The Missouri Constitution
requires:

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Art. I, 7. That no money shall ever be taken from the public treasury,
directly or indirectly, in aid of any church, sect, or denomination of religion, or in
aid of any priest, preacher, minister or teacher thereof, as such; and that no
preference shall be given to nor any discrimination made against any church, sect,
or creed of religion, or any form of religious faith or worship.
Art. IX, 8. Neither the general assembly, nor any county, city, town [etc.]
shall ever make an appropriation or pay from any public fund whatever, anything
in aid of any religious creed, church or sectarian purpose . . . .
Id. (citing Mo. Const. Art. I, 7 & Art. IX, 8) (emphasis added).
Missouri has a long history of maintaining [this] very high wall between church and state.
Id. (quoting Luetkemeyer v. Kaufmann, 364 F. Supp. 376, 383-84 (W.D. Mo. 1973), aff'd, 419 U.S.
888 (1974) (holding that Article 1, Section 7 is constitutional under the First Amendment); Brusca
v. State of Mo. ex rel. State Bd. of Educ., 332 F. Supp. 275, 279-80 (E.D. Mo. 1971) (concluding
that Article IX, Section 8 is constitutional under same and, accordingly, that the state may deny
funds to sectarian schools for religious instruction); see Paster, 512 S.W.2d at 104-05 (invalidating
statute requiring public school boards to provide textbooks to private school students); Bereghorn
v. Reorg. Sch. Dist. No. 8, 260 S.W.2d 573, 582-83 (Mo. 1953); McVey v. Hawkins, 258 S.W.2d
927, 933-34 (Mo. 1953) (enjoining use of public school buses to transport students to religious
schools); Harfst v. Hoegen, 163 S.W.2d 609, 613-14 (Mo. 1941) (enjoining use of public school
funds for the teaching of religion and faith at a parochial school that was taken into the public
school system); accord Luetkemeyer, 364 F. Supp. at 383-84 (upholding the states refusal to
provide transportation to church-sponsored schools).
The Supreme Court of Missouri has explained that the key question for purposes of
constitutionality of municipal aid is not whether the grant would indirectly benefit a church but
whether the beneficiary is controlled by a church or a religious creed. See Trinity Lutheran, 976 F.
Supp. 2d 1137, 1144-45 (W.D. Mo. 2013) (Lutheran daycare controlled by Lutheran church and

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incorporates instruction of Lutheran religious beliefs in activities at daycare); compare Americans

United v. Rogers, 538 S.W.2d 711, 721 (Mo. 1976) (the religious higher education institution
receiving aid, indirectly through students, was not controlled by church or religious creed); St.
Louis Univ. v. Masonic Temple Assn of St. Louis, 220 S.W.3d 721, 726, 728 (Mo. 2007) (noting
that higher education institution receiving aid, indirectly through the developer, was not controlled
by church or religious creed because although the University was affiliated with the Jesuits and
contained religious aspirations in its bylaws, an independent board managed and administered it,
its mission was education, not indoctrination, and its focus was on development of students, not
on the propagation of the Jesuits faith). The term Control by a religious creed suggests that the
religious component dictates the institutions administration and oversight. St. Louis Univ., 220
S.W.3d at 727. It is likely to include a religious doctrine as the core decision-making model for
the [institution] and will . . . be marked by efforts to indoctrinate the faith or support a particular
religious denomination. Id.; accord Trinity Lutheran, 788 F.3d at 782; 976 F. Supp. 2d at 1150
1155.
The case at bar is controlled by the ruling in Trinity Lutheran. In Trinity Lutheran, this
Court considered the Missouri Department of Natural Resources Solid Waste Management
Programs denial of the Lutheran daycares grant application for scrap tire materials as part of a
neutral public benefit program. 976 F. Supp. 2d at 1144-45. The Eighth Circuit affirmed this
Courts ruling that the Departments denial of the grant was proper even where the purpose of the
grant (to improve playground surfaces) was secular because the Lutheran Church controlled the
daycare and used it to inculcate its religious beliefs in attendees. 1 788 F.3d at 784 (agreeing with

The Eighth Circuit found that the daycare is a ministry of Trinity Church that teaches a Christian world view and
incorporates daily religious instruction in its programs. Trinity Lutheran, 788 F.3d at 782; accord Trinity Lutheran,
976 F. Supp. 2d at 1150, 1155 (the District Court concluded from the face of the Complaint that religious instruction
is a central element of the . . . daycare . . . and there is nothing in the Complaint to suggest that this instruction does

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this Courts assessment of how the Missouri Supreme Court would decide this claim). Trinity
Lutheran appealed to the United States Supreme Court, which granted certiorari. 2016 U.S. LEXIS
633 (U.S., Jan. 15, 2016). However, a court . . . should follow the case which directly controls,
leaving to the [Supreme] Court the prerogative of overruling its own decisions. 788 F.3d at 785
(quoting Agostini, 521 U.S. at 237 (an Establishment Clause decision)); see also ACLU v. Sebelius,
697 F. Supp. 2d 200, 207 (same).
Similarly in McVey, the Missouri Supreme Court considered whether a school district could
use public funds to transport children to a religious school. The Missouri Supreme Court decided,
per curiam, in the negative. McVey, 258 S.W.2d at 934 (such transportation of said students at
the expense of the district is unlawful and must be enjoined). Moreover, in Luetkemeyer, a threejudge district court was convened in the Western District of Missouri to consider a claim that the
First Amendment and the Equal Protection clause required Missouri to provide the same public
transportation benefits for the pupils of church-related schools as were being provided to transport
children to public schools. Trinity Lutheran, 788 F.3d at 783-84 (citing 364 F. Supp. at 377). In
denying [the church-related schools] injunctive and damage relief, the majority explained:
We conclude without hesitation that the long established constitutional policy of
the State of Missouri, which insists upon a degree of separation of church and state
to probably a higher degree than that required by the First Amendment, is indeed a
compelling state interest in the regulation of a subject within the States
constitutional power . . . That interest, in our judgment, satisfies any possible
infringement of the Free Exercise clause of the First Amendment or of any other
prohibition in the Constitution of the United States.
Id. This has been the rule in Missouri for more than 150 years.

not extend to the playground. Therefore, Trinitys exclusion from the aid program in this case was appropriate
based on the Missouri Constitutions heightened separation of church and state.) (citing Locke v. Davey, 540 U.S.
712, 716 (2004)).

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Like the church in Trinity Lutheran, the National Baptist Convention admittedly uses its
religious event, for which the NTDF funds were requested, to instruct attendees in its religious
beliefs and activities. The Baptist Convention is the meeting of the ministry, member churches,
and auxiliaries of the National Baptist Convention and the events activities incorporate daily
religious instruction. Membership in the national religious institution is required to attend. The
Baptist Convention and the Local Host Committee websites teach a Christian world view and
describe the event by proselytizing Baptist teachings and personalizing those teachings to Kansas
City and prospective attendees. Further, unlike Trinity Lutheran, neither the applicant nor the City
can identify a single secular purpose for which the funds would be used in support of the Baptist
Convention. Even if transportation of church members to a religious event were a secular purpose
(and it is not), the grant would still fail under Article I, Section 7 and Article IX, Section 8 because
the National Baptist Convention admittedly uses the event, for which the funding was requested,
to indoctrinate attendees in its religious teachings, and it is controlled by and operated in
furtherance of the Baptist creed. Id.
The mission of the National Baptist Convention is to fulfill the Great Commission of Jesus
Christ through preaching, teaching, and healing. See http://www.national baptist.com/aboutus/mission--objectives.html (last visited July 7, 2016). The National Baptist Conventions Kansas
City Host Committee preaches that all member-attendees of the event will be crowned in the
victory through our Lord Jesus Christ. See http://nbckansascity2016.com/ (last visited July 7,
2016). The Host Committee website further describes the Baptist Convention, for which the
funding was requested, as follows: Jesus the Christ / 2016 / Kansas City / Where Victors are
Crowned / And I was, and behold a white horse: and he that sat on him had a bow; and a crown

10

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was given unto him: and he went forth conquering, and to conquer. Revelation 6:2 / He gives us
the victory through our Lord Jesus Christ. See id.
Pastor Miles, who is a Baptist minister and Chairman of the National Baptist Conventions
Local Host Committee, requested the funds by and through his charitable organization, Modest
Miles Ministries, on behalf of the National Baptist Convention and its Local Host Committee
explaining that the national religious institution requires the funds to be paid by the City or the
Host Committee to cover travel costs of the religious organization. Exhibit D; compare Kansas
City Code, 2-939(b) (prohibiting such travel expenses). Thus, in lieu of shouldering his Host
Committee with the funding responsibility, it appears that Pastor Miles sought to obtain the
funding indirectly from the City through an application for municipal aid filed by his charitable
organization, which has no clear role in this transaction. Regardless of who files the application,
the end result is the same the aid would unconstitutionally support a religious purpose, event and
organization controlled by the Baptist creed.
Such municipal action using municipal taxpayer funds violates Article 1, Section 7 and
Article IX, Section 8 of the Missouri Constitution.
4. The Equal Protection Clause
The Fourteenth Amendment to the United States Constitution provides that no state shall .
. . deny to any person within its jurisdiction the equal protection of the laws . . . . U.S. Const.
amend. XIV, 1. As set forth above, Defendants awarded a grant of $65,000 in aid and support of
a pervasively religious Baptist institution and event in Kansas City. Defendants conduct denied
Plaintiffs equal protection of Article I, Section 7 and Article IX, Section 8 of the Missouri
Constitution, which prohibit any public aid to or for a religious institution or purpose, directly or

11

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indirectly, as well as equal protection from the establishment of municipal support of one religion
over none under the Establishment Clause of the United States Constitution.
Furthermore, in light of the State of Missouris recent denial of a public benefit to a
Lutheran church under Article I, Section 7 of the Missouri Constitution, Trinity Lutheran, 788 F.3d
at 790 (8th Cir. 2015), Defendants grant to a group of Baptist churches controlled by the Baptist
creed as herein alleged constitutes unequal treatment of similarly situated applicants for public aid
based on denomination in violation of the Establishment Clause and Equal Protection Clause. Id.
(noting overlap in First Amendment and Equal Protection Clause issues). Neither clause allows
such disparate treatment of religious applicants in public benefit programs under color of state law,
regardless of whether the actor is the state or its subordinate municipality. See id at 786 (if
granting Trinity Churchs application would have constituted aid to a church prohibited by the
first clause of Article I, 7, then denying the grant was not a discriminatory action prohibited by
the second clause).
Defendants preferential treatment of the Baptists in the face of Trinity Lutheran is a clear
violation of the First Amendment, and no doubt of the Missouri Constitution as well. Id.; Larson
v. Valente, 456 U.S. 228, 246 (1982) (no State can pass laws which aid one religion or that
prefer one religion over another.) (citing Everest v. Bd. of Educ., 330 U.S. 1, 15 (1947)); Waites
v. Waites, 567 S.W.2d 326, 333 (Mo. 1978) (Any suggestion that a state judicial officer [was]
favoring or tending to favor one religious persuasion over another . . . would be intolerable to our
organic law).
B. The movant will suffer irreparable harm unless the Preliminary Injunction is
issued.
The United States Supreme Court and the Eighth Circuit have long held that a violation of
First Amendment rights even temporarily amounts to irreparable injury for purposes of
12

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entitlement to preliminary injunctive relief. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (The
loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury); Kirkeby v. Furness, 52 F.3d 772, 775 (8th Cir. 1995) (quoting same); Planned
Parenthood Minn. v. Daugaard, 799 F. Supp. 2d 1048, 1076-77 (D.S.D. 2011) (quoting same).
Every other circuit court of appeals that has addressed the issue has so held. See, e.g., Scott v.
Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) (First Amendment violation constitutes irreparable
injury for purposes of a preliminary injunction) (citing Elrod, 427 U.S. at 373)); Stilp v. Contino,
613 F.3d 405, 409 (3d Cir. 2010) (same); Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C.
Cir. 2009) (same); Nuxoll v. India Prairie Sch. Dist. #204, 523 F.3d 668, 669-70 (7th Cir. 2008)
(same); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002) (same);
Tucker v. City of Fairfield, 398 F.3d 457, 464 (6th Cir. 2005) (same); Newsom v. Albemarle County
Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (same); Berry v. City of New York, 97 F.3d 689, 693
(2d Cir. 1996) (Violations of First Amendment rights are commonly considered irreparable
injuries for the purposes of a preliminary injunction.); Deerfield Med. Ctr. v. City of Deerfield
Beach, 661 F.2d 328, 338 (5th Cir. 1981); Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981).
As a direct result of the Defendants violation of Plaintiffs constitutional rights to be free
from compelled support of religious institutions and activities and to the equal protection of the
laws of Missouri, Plaintiff taxpayers have suffered irreparable harm for which there is no adequate
remedy at law. Unless and until Defendants are enjoined from paying the $65,000 in public funds
to Modest Miles Ministries in aid and support of the Baptist Convention as disclosed and approved
by Defendants in Ordinance No. 160291, Plaintiff taxpayers will suffer and continue to suffer
irreparable harm to their constitutional rights.

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Accordingly, the threat of irreparable harm weighs heavily in favor of granting the
preliminary injunction. Planned Parenthood Minn., 799 F. Supp. 2d at 1077.
C. The balance of equity weighs in Plaintiffs favor.
As set forth above, Plaintiffs are likely to prevail on their First Amendment claims as well
as their Missouri constitutional claims. The protection of First Amendment rights weighs heavily
in the balancing of harms, for the protection of those rights is not merely a benefit to plaintiff but
to all citizens. R.G. v. Koller, 415 F. Supp. 2d 1129, 1162 (D. Haw. 2006) (citing Intl Soc'y for
Krishna Consciousness v. Kearnes, 454 F.Supp. 116, 125 (E.D. Cal. 1978)).
Here, the injury imposed by the payment of public monies for and in support of religion
under Ordinance No. 160291 is irreparable. In contrast, Defendants will not be harmed in any way
by imposition of a preliminary injunction. The harm to Plaintiffs First Amendment rights and to
societys interest in being free from government establishment of one religion over no religion or
one religion over another tips the balance in favor of an injunction.
Accordingly, the threatened injury outweighs whatever damage the proposed injunction
may cause the opposing party.
D. The requested relief is not adverse to public interest.
The public interest is in protection of citizens freedom from government establishment of
religion and the equal application of the laws. Because the requested injunction in this case will
protect Plaintiffs rights to be free from compelled support of religious institutions and activities
and to be free from Establishment Clause violations, granting the requested injunction will further
the public interest. Conversely, allowing Defendants to pay the unconstitutional expenditure would
harm all municipal taxpayers right to be free from established municipal support of religion and
frustrate the public interest.

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III. Conclusion
For these reasons, Plaintiffs request the Court issue a Preliminary and Permanent Injunction
and for such other relief as the Court deems just and proper.
Further, since it appears that Defendants will not suffer any loss or damage by reason of
the issuance of the Preliminary Injunction and because constitutional rights are at stake, no bond
or other security is required. Courts may elect to require no security at all, especially where harm
to the party enjoined is unlikely or speculative. See H&R Block Tax Servs. LLC v. Haworth, 2015
U.S. Dist. LEXIS 177290, *8-9 (W.D. Mo. Mar. 26, 2015) (the injunction does not pose a material
risk of injury to Defendant; therefore, no security is necessary). For these reasons, Plaintiffs ask
the Court to waive any bond.
Dated July 22, 2016.
Respectfully Submitted,
/s/ Karen Donnelly
Karen Donnelly, MO Bar No. 62851
COPILEVITZ & CANTER, LLC
310 W. 20th Street, Suite 300
Kansas City, MO 64108
816-472-9000
816-472-5000 (f)
kdonnelly@cckc-law.com

Attorneys for Plaintiffs

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