Jonathan Whitehead has had a front row seat for two of the U.S. Supreme Court’s biggest religious liberty cases in recent memory.
Whitehead, who has a solo practice in Lee’s Summit, served as local counsel for Trinity Lutheran Church in Columbia, which runs a day care program that became the center of a closely watched fight over separation of church and state when it tried to participate in a state-funded program to use recycled tire scraps to resurface its playground. The Supreme Court ruled last June that Missouri could not exclude the church from the program.
Whitehead’s role in the case led him to Washington in April to watch the oral arguments on behalf of his client. In December, he was back to hear the court consider whether a Colorado baker could refuse to make a cake for a same-sex wedding. Although Whitehead wasn’t part of that underlying case, he wrote an amicus brief on behalf of a group of U.S. lawmakers who are sympathetic to the baker’s cause.
After practicing commercial litigation earlier in his career. Whitehead started his own practice in 2008 that focuses mostly on representing religious organizations. Most of those cases involve such relatively humdrum matters as dealing with church property or hiring and firing. But, he said, “The First Amendment gives each of them a little bit of a different flavor.”
Whitehead sometimes practices with his father, Michael Whitehead, who had helped argue a 1981 case over whether the University of Missouri-Kansas City could bar a student religious group from using a campus building for meetings. That made the father-son-duo a natural fit to help the group Alliance Defending Freedom to field the Trinity Lutheran dispute, and they were heavily involved in the case throughout the trial and the appeals process.
In the Colorado baker’s case, Whitehead wrote a brief on behalf of 11 U.S. senators and 75 U.S. representatives, including Rep. Vicky Hartzler, R-Mo., arguing that a ruling against the baker “would trample the rights of all Americans, by placing a special burden on those Americans trying to earn a livelihood consistent with their religiously informed consciences.” A ruling in the case is expected by June.
Whitehead’s roles in both cases gave him a shot at securing one of the few seats at the Supreme Court’s oral arguments.
“You’re very crowded next to each other,” he said. “You see lots of folks that you recognize in religious liberty cases. That bar is pretty well known to each other.”
Taking part in those cases, Whitehead said, ultimately makes him a better lawyer in his field even in cases that will never even go to trial, much less be appealed.
“There is no substitute for being in the room,” he said. “It really just changes your perspective about what the court is looking for, what’s an effective argument, what arguments you’re going to keep, what arguments you’re going to throw away. It really does change your practice.”