Zelman is inapposite. It involved a voucher program in which aid was available to "a broad class of citizens who, in turn, direct[ed] government aid to religious schools wholly as a result of their own genuine and independent private choice." By contrast, this is a direct grant program in which the state decides which entities get the grants, and sends the money directly to the entities. The Court in Zelman specifically distinguished Mitchell and all the direct funding cases.
On Sun, May 31, 2015 at 9:20 PM, Douglas Laycock <dlayc...@virginia.edu> wrote: > I suspect that many judges have a hard time taking O'Connor's Mitchell > opinion seriously after Zelman -- even though O'Connor's opinion was > controlling and they are not supposed to anticipate overrulings. > > On Sun, 31 May 2015 21:08:20 -0400 > Marty Lederman <lederman.ma...@gmail.com> wrote: > >The court of appeals writes: > > > >We also recognize that the Supreme Court’s Establishment Clause > >jurisprudence has evolved rather dramatically in the forty years since > >Luetkemeyer was decided. For example, *it now seems rather clear* that > >Missouri could include the Learning Center’s playground in a > >non-discriminatory Scrap Tire grant program without violating the > >Establishment Clause. > > > >No citation for "it now seems rather clear"--not even *Bowen v. Kendrick*, > >which is probably the strongest case (although of course it did not > involve > >direct funding to a church, as such)--and no effort to discuss *Mitchell*, > >or to distinguish any of the cases cited in the Souter opinion in > *Mitchell > >*in which the Court held that the EC prohibited direct funding of churches > >and parochial schools. > > > >Don't get me wrong: If the case were heard by the present Supreme Court, > I > >imagine there'd be five votes that the EC does not prohibit the grants to > >churches. (Alito is obviously much more likely than was O'Connor to > accept > >the rationale of the Thomas opinion in *Mitchell*.) Even so, you'd think > >that Missouri would have emphasized that such funding is constitutionally > >problematic under governing doctrine (it didn't do so in its brief), and > >that a court of appeals would at least address the question. > > > >On Sun, May 31, 2015 at 8:01 PM, Marty Lederman <lederman.ma...@gmail.com > > > >wrote: > > > >> Under *Mitchell v. Helms*, would it even be constitutionally > *permissible* for > >> the state to give direct grant funding to the church? Recall that SOC, > in > >> her governing opinion, rested quite heavily on the distinction between > >> monetary and nonmonetary aid when it comes to direct aid (as opposed to > >> vouchers): > >> > >> Justice Souter is *correct to note our continued recognition of the > >> special dangers associated with direct money grants to religious > >> institutions*. It does not follow, however, that we should treat as > >> constitutionally suspect any form of secular aid that might conceivably > be > >> diverted to a religious use. As the cases Justice Souter cites > demonstrate, *our > >> concern with direct monetary aid is based on more than just diversion*. > *In > >> fact, the most important reason for according special treatment to > direct > >> money grants is that this form of aid falls precariously close to the > >> original object of the Establishment Clause’s prohibition*. See, e.g., > >> Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 668 (1970) (“[F]or > >> the men who wrote the Religion Clauses of the First Amendment the > >> ‘establishment’ of a religion connoted sponsorship, financial support, > and > >> active involvement of the sovereign in religious activity”). Statements > >> concerning the *constitutionally suspect status of direct cash aid*, > >> accordingly, provide no justification for applying an absolute rule > against > >> divertibility when the aid consists instead of instructional materials > and > >> equipment. > >> * * * * > >> This Court has “recognized *special Establishment Clause dangers where > >> the government makes direct money payments to sectarian institutions.*” > >> Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. > (collecting > >> cases). If, as the plurality contends, a per-capita-aid program is > >> identical in relevant constitutional respects to a true private-choice > >> program, then there is no reason that, under the plurality's reasoning, > the > >> government should be precluded from providing direct money payments to > >> religious organizations (including churches) based on the number of > persons > >> belonging to each organization. And, because actual diversion is > >> permissible under the plurality's holding, the participating religious > >> organizations (including churches) could use that aid to support > religious > >> indoctrination. To be sure, *the plurality does not actually hold that > >> its theory extends to direct money payments*. See ante, at 2546–2547. > >> That omission, however, is of little comfort. In its logic—as well as > its > >> specific advisory language, see ante, at 2546–2547, n. 8—the plurality > >> opinion foreshadows the approval of direct monetary subsidies to > religious > >> organizations, even when they use the money to advance their religious > >> objectives. > >> > >> > >> > >> On Sun, May 31, 2015 at 7:34 PM, Volokh, Eugene <vol...@law.ucla.edu> > >> wrote: > >> > >>> From *Trinity Lutheran Church v. Pauley* (8th Cir. May 29) (2-to-1 > >>> vote), http://media.ca8.uscourts.gov/opndir/15/05/141382P.pdf: > >>> > >>> > >>> > >>> DNR [Department of Natural Resources] offers Playground Scrap Tire > >>> Surface Material Grants, a solid waste management program. The grants > >>> provide DNR funds to qualifying organizations for the purchase of > recycled > >>> tires to resurface playgrounds, a beneficial reuse of this solid > waste. See > >>> Mo. Rev. Stat. §§ 260.335.1, 260.273.6(2). In 2012, Trinity Church > applied > >>> for a grant to replace the Learning Center’s playground surface [which, > >>> according to the dissent, is currently gravel –EV], disclosing that the > >>> Learning Center was part of Trinity Church. On May 21, 2012, the Solid > >>> Waste Management Program Director wrote the Learning Center’s Director, > >>> advising: > >>> > >>> > >>> > >>> [A]fter further review of applicable constitutional limitations, the > >>> department is unable to provide this financial assistance directly to > the > >>> church as contemplated by the grant application. Please note that > Article > >>> I, Section 7 of the Missouri Constitution specifically provides that > “no > >>> money shall ever be taken from the public treasury, directly or > indirectly, > >>> in aid of any church, section or denomination of religion.” > >>> > >>> > >>> > >>> A Solid Waste Management Program planner subsequently advised the Solid > >>> Waste Management District Director that Trinity Church’s application > ranked > >>> fifth out of forty four applications in 2012, and that fourteen > projects > >>> were funded. > >>> > >>> > >>> > >>> The majority held this decision didn’t violate the First Amendment; the > >>> dissent said that it did. Both naturally discussed the scope of *Locke > >>> v. Davey*. Do list members think this is right? How far removed is > >>> this from, say, the provision of police, fire, or trash hauling > services, > >>> seismic retrofitting funds, or grants or low-interest loans for > >>> reconstruction after an earthquake, flood, or terrorist attack? Or > would > >>> it be constitutionally permissible – and even mandated under the > Missouri > >>> Constitution – to deny religious institutions such generally available > >>> funds? > >>> > >>> > >>> > >>> Eugene > >>> > >>> _______________________________________________ > >>> To post, send message to Religionlaw@lists.ucla.edu > >>> To subscribe, unsubscribe, change options, or get password, see > >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >>> > >>> Please note that messages sent to this large list cannot be viewed as > >>> private. Anyone can subscribe to the list and read messages that are > >>> posted; people can read the Web archives; and list members can > (rightly or > >>> wrongly) forward the messages to others. > >>> > >> > >> > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
