"That doesn't mean that many people besides O'Connor think the distinction makes any sense."
Well, a whole slew of religious parties, their amici, and Justices, in cases from Witters on down, thought the distinction was of vital constitutional significance. More to the point -- the point I was making -- under governing Supreme Court law the distinction makes all the difference in the world, whatever one thinks the doctrine *ought* to be. A bunch of SCOTUS cases would come out the other way under Thomas's view. Therefore you'd think the parties and the Eighth Circuit judges would at least have bothered to grapple with the doctrine, rather than simply stating, without citation, that "it now seems rather clear" that the rule is the opposite of what the governing precedent says it is. And the fact that this is a selective grant program, in which the state makes discretionary decisions about which applicants get the dollars (what do you think the odds are that the Scientology or Wiccan churches would have been among the lucky recipients?) makes the omission even more striking. Churches have not been constitutionally eligible to receive government grants --especially selective grants--for many decades. Whatever one thinks about how the Court *should *construe the religion clauses, it would certainly be a very significant shift in longstanding doctrine for the Court even to *allow* Missouri to give grants to this church, let alone require it do so. On Sun, May 31, 2015 at 10:36 PM, Douglas Laycock <dlayc...@virginia.edu> wrote: > I understand that. That doesn't mean that many people besides O'Connor > think the distinction makes any sense. > > The state's exercise of discretion matters, because the state might > discriminate in ways that are hard to detect. Per capita distribution > instead of vouchers does not matter, and so O'Connor's opinion is hard to > take seriously. And I'm guessing that many judges don't pay it much heed > after Zelman. > > On Sun, 31 May 2015 21:33:37 -0400 > Marty Lederman <lederman.ma...@gmail.com> wrote: > >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 > >> > > 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.
