The first sentence of Mark's email is partly why many of us keep writing over and over that there is no longer a real difference between Originalists and non-Originalists...
e Sent from my iPhone On Apr 22, 2017, at 11:19 AM, Mark Scarberry <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: Originalism needs to be applied in context in light of underlying principles and entrenched nonoriginalist doctrine. No one would have thought in 1868 that the Establishment Clause would be given its current expansive reading, as applied to the states; it now places very substantial limits on a state that desires to give religious groups equal access to resources. There are not enough originalists on the Court to modify that reading substantially, putting to one side the appropriate role of stare decisis for an originalist. Nor does it seem likely that the very expanded role of governments at all levels in controlling and allocating resources was contemplated in 1868. To the extent that incorporation requires that the First Amendment be given the same effect as applied to the states that it is given as applied to the federal government, it's not just equality as against a state that is at issue; equality in access to federal resources is also at issue. Chip's approach amounts to a kind of unilateral disarmament for those of us who think the underlying originalist principles incorporate at the very least non-discrimination against religious groups. When a nonoriginalist reading of the Establishment Clause puts the underlying originalist principles out of balance, there may be a justification for restoring the balance to honor originalist principles at a fairly high level of generality. Mark Mark S. Scarberry Pepperdine University School of Law _____________________________ From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> Sent: Saturday, April 22, 2017 8:09 AM Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. There are no cases striking down aid programs before or after that window. And even in that window there were a lot more than three pence worth of exceptions. Everson announced two principles: no aid in absolutist terms, and no person can be deprived of social welfare benefits because of his religion. The two principles turn out to be inconsistent, because any government money can be understood either as aid or as a social welfare benefit. The inconsistency accounts for the inconsistencies of theLemon-era cases. And the social welfare benefit principle accounts for the result inEverson, and Board of Education v. Allen in 1968, and all the cases fromWitters forward. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>] Sent: Saturday, April 22, 2017 9:42 AM To: Law & Religion issues for Law Academics Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? 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 anoriginalist 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
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