And you can argue for no aid because you think it's normatively desirable -- although at times I have understood you to be on the other side of the issue, or at least to have taken a much more nuanced view.
But you cannot win the normative argument by claiming that the Founders decided, because they issue they decided was very different. And we should not exaggerate what the Supreme Court did, because for most of the last 70 years, it struggled with two very different understandings of the Establishment Clause. There can be no original intent, understanding, or public meaning with respect to government programs to distribute funds to broad classes of beneficiaries, because there were essentially no such programs in 1791 or 1868. 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 [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Saturday, April 22, 2017 11:44 AM To: Law & Religion issues for Law Academics Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not? Mark suggests I am advocating "disarmament for those . . . who think the underlying originalist principles incorporate at the very least non-discrimination against religious groups." Au contraire. To arms, Mark! Please suggest something -- anything -- that supports the argument that the original meaning of the equal protection clause, or the free exercise clause, supports equal treatment of religious groups in the distribution of state funds. It seems to me that the evidence, from all those state constitutional provisions re: no funding of religion, cuts strongly the other way, but I am open to persuasion. To Doug: The Court adhered to a strong "free exercise exemption" principle only from 1963-1981, and Court majorities explicitly rejected that principle before 1963 and afterward. You still fight for it because you think it's normatively desirable. Fine. And there has never been a repudiation by a majority of a "weaker" no-aid principle -- i.e., the state may not directly subsidize worship or religious instruction (a principle to which O'Connor plainly adhered, even as she wrote opinions that upheld aid for remedial teachers in secular subjects in religious schools, and aid for computers and other materials restricted to secular use). On Sat, 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 of them writes or joins. On Sat, Apr 22, 2017 at 12:43 AM, Michael Peabody <mich...@californialaw.org<mailto: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<mailto: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<tel:(434)%20243-8546> _______________________________________________ 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. -- 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.
