I suppose there's a baseline question here, along with an unconstitutional conditions issue and probably other issues. Could a synagogue be required to allow a wedding to be held on its property between a Jew and a non-Jew, as a condition of receiving protection of its property by a fire department? (I realize that not all synagogues would oppose such a mixed marriage.) Or of receiving a building permit on an equal basis with other organizations (absent RLUIPA)? Freedom of religion (along with other freedoms) means little if the ordinary benefits of our society can be denied to a person or group because of the exercise of that freedom. The Bob Jones case is either an outlier or an example of a benefit (tax treatment as a charity) that is not an ordinary benefit.
We were all assured that the same-sex marriage issue could never be the basis for application of Bob Jones. That assurance seems, in Nixonian terms, to have become inoperative. Of course a person or group that receives benefits from a government ordinarily does not as a result become a state actor for equal protection purposes; I assume no one is arguing to the contrary, absent a government function or symbiosis concern. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On May 5, 2016, at 9:33 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: 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<mailto: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> > [mailto:religionlaw-<mailto:religionlaw-> > boun...@lists.ucla.edu<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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.
