As I understood Michael's observation, it was that the topside briefs in *Trinity Lutheran* argue at great length that churches, as such, can virtually never be disfavored vis-a-vis similarly situated secular institutions, under both the Free Exercise and Equal Protection Clauses -- whereas the writers of those briefs would, of course, strongly argue that a legislature generally can, and sometimes must, treat churches *more favorably* than such secular institutions. His fear, as I understood it (but perhaps I misunderstood him), was that the emphasis on formal equality in the briefs might prompt the Court to settle upon a holding closer to strict formal equality than it has ever previously announced -- which could be damaging to claims for permissive accommodations (akin to the fears raised by the "HHS can't favor churches" argument of the petitioners in *Zubik*).
On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Hasn't that ship sailed already? We know from Bob Jones that > religious universities are subject to loss of their charitable tax > exemption if they discriminate, and that the government indeed can and does > use the threat of withdrawing funds as a means for changing church policy. > Maybe in some super-pure world whether religious institutions didn't even > get tax exemptions, they could resist such restrictions. But even there, > of course, the government would have broad power to impose restrictions, > just in its capacity as sovereign and even without funding; recall, for > instance, the New Jersey wedding venue case, where a church-owned venue was > held subject to antidiscrimination law even without any funding hook. > > Surrendering any Free Exercise Clause claims to equal treatment in > funding, as a means of trying to strengthen their claims to autonomy, would > be a poor choice for churches, I think. Those who want to impose > antidiscrimination laws on churches and church-owned organizations > generally aren't terribly interested in giving churches such autonomy, > whether or not churches get equal access to generally available benefits. > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Michael Peabody > > Sent: Thursday, May 05, 2016 8:47 AM > > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > Subject: Trinity Lutheran Church - will churches have to extend "equal > > protection" to all when it comes to use? > > > > In reading the briefs on the Trinity Lutheran Church case, I see a lot > of reference > > to churches being denied "equal protection" when state laws specifically > prohibit > > them from participating in otherwise neutral state aid programs that are > > available to other civic institutions. Yet churches often vigorously > argue that > > they are exempt from "equal protection" when it comes to access to their > > facilities. > > > > But in turn, let's say that Trinity wins the case - does that mean that > churches > > that receive the funding could be subject to discrimination claims > brought by > > citizens who are prohibited from accessing the infrastructure, or are > > discriminated against while on the infrastructure, because the church > teaches > > against their protected class (i.e. religion, gender, sexual > orientation, etc.)? > > > > I'm thinking that churches that argue for equal protection when it comes > to > > compelling state funding of their institutions, and claim that they > should be on > > an equal footing when it comes to similar secular civic organizations, > should > > recognize that civic organizations are also held to a higher standard > when it > > comes to discrimination claims. > > > > Churches that receive funding and simultaneously seek to reserve the > right to > > discriminate should expect that they will be held to the same > non-discrimination > > standards as other civic organizations as a condition of receiving such > funding > > and that they will need to take "equal protection" into account when it > comes to > > people and other organizations which seek to access and use churches' > state- > > funded infrastructure. > > > > Put simply, could Trinity Lutheran Church be a Trojan Horse? > > > > I would be interested in your thoughts. > > > > Michael Peabody, Esq. > > ReligiousLiberty.TV > > _______________________________________________ > > 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. > _______________________________________________ > 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. >
_______________________________________________ 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.
