A few points: 1) Trinity Lutheran has never been asked for or given its "word that the playground will be used for [exclusively] secular purposes." If it receives a grant, nothing in Missouri law will stop the church from using the playground for worship services or religious instruction.
2) In my original post, I did not claim that the Madisonian narrative behind the "no funding" rules of the Establishment Clause was correct or persuasive as an original matter. I did suggest that the Madisonian narrative was the basis for a view that held a majority of the Supreme Court from 1947 until at least 2002, and that no majority of the Court had ever repudiated. Yet that narrative has dramatically declined within public discourse -- legal, cultural, political, and journalistic. 3) Trinity Lutheran is not an Establishment Clause case. The "no funding" decision did not rest on the few and ambiguous words of the Establishment Clause. Rather, it rested on the clear and explicit words of Art. I, sec. 7 of the Missouri Constitution: "No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion." That is a no funding provision, and it cannot be squared with an equal funding principle. The question in the case is not whether equal funding is permissible under the federal constitution; rather, it is whether equal funding is required by the federal constitution. 4) I understand completely the normative objections to a no funding rule when the state is subsidizing public safety. And I understand the Church's arguments from the equal protection clause, and the free exercise clause, that support those normative objections. What I do not understand, and have not seen, are anything resembling an *originalist* argument that a rule forbidding the funding of churches violates either of those two provisions. How anyone could read the history of the 14th A, and prevalent attitudes at the time, to support a constitutional requirement of equal funding of churches is beyond me. I am not an originalist, but Justices Thomas and Gorsuch claim to be, and I will be very curious to read the originalist portions of the opinions that either of them writes or joins. On Sat, Apr 22, 2017 at 12:43 AM, Michael Peabody <mich...@californialaw.org > wrote: > > > As to the "secular function" argument, is it truly a secular function? > Churches would claim that secular functions are not religious functions but > at the same time are also saying, "We are doing something that secular > organizations also do, but we are going to limit access in ways that > secular non-profits by law cannot." I don't know that such a position is > tenable given the gestalt of the post-Obergefell age. > > Further, many religious elementary schools as a rule do not generally > distinguish between secular and religious portions but try to provide a > wholistic spiritual atmosphere in all aspects of their activities and > properties. Having said this, I do believe the Court will avoid trying to > figure out how secular or religious the use is, but rather take the > organization's word that is is "secular." > > And doesn't the "secular" designation invite secular regulation? > > If the law required defibrillators and the state gave grants to secular > institutions but denied them to religious schools that would be an entirely > different matter. After all, a defibrillator has a clear purpose and can't > be used for anything else. But here there is no such mandate for a rubber > playground and a playground can be used for many things. > > On a personal note, I am a strong supporter of parochial education​. I > send both of my kids to religious schools at considerable expense. But I am > concerned with the trending winnowing away of the religious character of > these institutions if they begin to accept state funds and the state > imposes hiring, curriculum, and other regulations that impinge on this > character in order to protect the taxpayers' secular investment. > > Ultimately, I do anticipate that the Court, if it reaches the merits, will > find in favor of Trinity Lutheran and accept the school's word that the > playground will be used for secular purposes. > > Given the bakery and photographer cases, and threats to require facilities > to be open to all comers, I think a follow-up round of litigation on usage > will be unavoidable and given the results of the existing wedding services > cases involving small businesses, it would seem that churches ought to be > wary of what is lurking on the horizon if Trinity wins. > > Thank you for the very informative and thoughtful points and discussion. > > Michael Peabody, Esq. > President, > Founders First Freedom > > On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu> > wrote: > >> The funding question resolved in the founding generation was special >> allocation of public funds, not part of any broader program or category, to >> support the core religious functions of churches -- the salaries of clergy >> mostly, but also sometimes the construction of churches, or the income from >> glebe lands, which could be used for any purpose the church chose. That >> kind of expenditure was and is unconstitutional; there is no modern dispute >> about that. >> >> >> >> In that environment, the principle of no discrimination in favor of or >> against religion was entirely consistent with the principle of no funding >> for religion. There were no programs of funding broad categories of private >> activities. >> >> >> >> Today's issue is nondiscriminatory funding of secular functions carried >> out by religious organizations in religious contexts. Now the principles of >> no discrimination and no funding squarely conflict, and we have to choose >> between them. And the founding generation did not make that choice. >> >> >> Douglas Laycock >> Robert E. Scott Distinguished Professor of Law >> University of Virginia >> 580 Massie Road >> Charlottesville, VA 22903 >> 434-243-8546 <(434)%20243-8546> >> ------------------------------ >> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucl >> a.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] >> *Sent:* Friday, April 21, 2017 4:52 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. >> >> >> >> _______________________________________________ >> 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
