One question is what to do when governments at all levels control more and more
resource allocations (far more I think than Madison could have expected).
Programs that target religious institutions for particular affirmative benefits
still should be highly suspect. Programs that deny equal access to resources
impose more and more of a burden as governments grow.
Some "benefits" may appropriately be seen as attempts to respect separate space
for religious organizations and for religious obligations.
Mark
Mark S. Scarberry
Pepperdine University School of Law
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Friday, April 21, 2017 2:51:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special
Treatment or Not?
Are we indeed sure that the “Madisonian understanding of
church-state separation” indeed prohibits funding in the context of generally
available funding programs? The Memorial and Remonstrance, after all, was
written in response to a program that was specifically targeted towards
benefiting the clergy; and much of the language in the Memorial and
Remonstrance focuses on the law taking cognizance of religion, violating
equality principles, and support of “establishment.”
Now I realize that there might not be enough data points on
this for us to speak with confidence, given that the government of the era
might not have used such programs much. But the post seems to be quite
confident that the original understanding applied without regard to whether any
funding was targeted to religious institutions or religious uses. I’m
wondering whether we should indeed have such confidence.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special
Treatment or Not?
I have been struck this week by how almost all of the pro-state discussion of
Trinity Lutheran has focused on the problem of discrimination by state funded
churches (i.e., why should taxpayers fund activities from which some are
invidiously excluded?). It's as if we (academics as well as informed
journalists) have all forgotten the origins and justifications of no-funding
rules. Madison's Memorial & Remonstrance, the classic defense of such rules,
is certainly not concerned with discrimination by recipient churches. It is,
rather, focused on other policies that justify separation in funding matters --
religious voluntarism (not forcing taxpayers to subsidize faiths with which
they disagree or agree); the danger of church dependence on the state; mutual
corruption of church and state that financial relationships might produce,
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of
powers provision, and the same is true for the state constsitutions' no-funding
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of
largesse, including funds for safe playground surfaces. So we can argue about
whether it is wise to relax state-based no funding rules (the 1st A rules have
already been relaxed to some extent), or whether it is fair to exclude churches
from some forms of largesse. (No one is excluding them from police and fire
protection). My point here is that the Madisonian understanding of
church-state separation, and the no-funding rules that followed, has been
largely lost. Maybe that's because the fight, so prominent from the mid-19th
century until relatively late in the 20th century, about funding Catholic
schools has long been over. Maybe our collective forgetfulness about the
Madisonian narrative is also about the expanded welfare state, where religious
communities play a huge partnership role. Maybe we now have full confidence in
religious pluralism and the unlikelihood of sectarian discrimination by the
state, though the continuing experience of Muslims and Native Americans in the
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed. Not even Justices
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining
continuity with that tradition. When the no-funding tradition is reduced to a
formal rule -- the state cannot write a check to the church -- it will soon
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original
matter, entitles houses of worship to equal treatment in state funding
arrangements seems spectacularly unpersuasive. So let's see what our new
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity
Lutheran.
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