I don't think I understand Mark's questions about weddings and generally applicable conditions on tax benefits, none of which are raised by *Trinity Lutheran*. The principal issue here is whether the basic "no aid to churches" rule found in approximately half of states' constitutions -- a rule that was, indeed, a bedrock requirement of the Court's *Establishment Clause *doctrine until very recently (and perhaps it still is, at least as a matter of precedent) -- is now unconstitutional.
On Thu, May 5, 2016 at 1:14 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > 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> > 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> > 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. > > > _______________________________________________ > 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.
