Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Mark Scarberry]

I would like to know whether her superior allowed or would have allowed other 
secular messages to be posted, like "Be a positive thinker!" or even "My 
daughter is the best!" Perhaps the burden should be on the military to show 
that other messages would have been treated the same. We are told only that "as 
far as the record shows," he would have. That's a bit ambiguous. Did the record 
show he would have?

The message was not, I think, overtly religious; how many list members would 
have thought, "Oh, that's from the Bible!" (It could have been from Dungeons 
and dragons, or a Lord of the Rings clone, or just vivid and creative 
language.) Nor was it exclusionary, so as to potentially disrupt the cohesion 
that might be important particularly in a military environment. Nor does it 
appear that the message was directed against others in the office that Sterling 
might have thought were against her.

Even with its somewhat archaic language, I would think that the message was 
entirely appropriate for a military, much of whose purpose is to defeat or 
deter others in the use of weapons.

If there might be a speech discrimination issue here -- with religious speech 
being favored under RFRA -- one solution would be to allow everyone to post a 
non-disruptive message at their desk.

 Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Marty Lederman 
>
Sent: Wednesday, April 26, 2017 4:37 PM
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens
To: Marty Lederman >
Cc: Law & Religion issues for Law Academics 
>


Here's the government's brief in 
opposition.
  It stresses that RFRA's substantial burden test requires the claimant at a 
minimum to provide evidence of an honest belief that the practice in 
question--rather than available alternatives--wasimportant to her exercise of 
religion (something utterly lacking here--see my description below).

The SG does not mention, in addition, that even if there were a substantial 
burden here, RFRA would not require a religious exemption because the 
government has a compelling interest in not violating the Free Speech Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman 
> 
wrote:
Now that Paul Clement has filed a cert. 
petition
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified,a "mental reminder” to her and that she didnot intend 
to “send a message to anyone” else.  Paul's petition asserts, without citation 
to the record, that "[t]he conduct at issue was an undisputed exercise of 
religion by LCpl Sterling to beseech a higher power for spiritual strength and 
fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for spiritual strength and 
fortitude in the face of challenges."  Sterling did not testify, or otherwise 
claim, however, that her religion mandated that she post the signs, or that it 
was a common practice or tenet of 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

No. But disagreements over matters related to sexual morality more broadly -- 
gay rights, abortion, contraception, sex outside marriage, in vitro 
fertilization, etc. -- explains much of the hostility to exemptions and the 
breakup of the coalition that passed RFRA.



On funding, there are many relevant changes: the decline of Protestant-Catholic 
tensions, the evangelicals switching sides, many black parents switching sides, 
the rise of the secular school choice movement. All these things both changed 
the numbers and reframed the issue.



Shameless plug: On the first point, see Sex, Atheism, and the Free Exercise of 
Religion, 88 U. Detroit Mercy L. Rev. 407 (2011). On the second, see Why the 
Supreme Court Changed Its Mind About Government Aid to Religious Institutions: 
It's a Lot More Than Just Republican Appointments, 2008 BYU L. Rev. 275.



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: Wednesday, April 26, 2017 7:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


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Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marc Stern]

There have been fights over parochial school teachers " living in sin, " 
announcing support for abortion, having an abortion; schools wishing to hire 
only believers for secular positions. Lately, there are challenges to abortion 
conscience clauses. LGBT rights certainly figure prominently, but they are not 
unique or even first in time. The old timers amongst us remember the efforts in 
the 1980s to require Christian schools  not getting  government money to mimic 
in all respects the curriculum of the public schools including value laden 
issues such as evolution and women's roles.

And none of this is to discuss the expanded role of government funding ( and 
levels of taxes) since the founding, at the federal level at least premised on 
a reconsidered view of delegated powers such as the spending clause.

Marc Stern
General Counsel
AJC
212  891 1480
646 287 2606(cell)




On Apr 26, 2017, at 7:23 PM, Ira Lupu 
> wrote:

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
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Religionlaw@lists.ucla.edu
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George Washington University
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Anyone can subscribe 

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Marty Lederman]

Here's the government's brief in opposition
.  It
stresses that RFRA's substantial burden test requires the claimant at a
minimum to provide evidence of an honest belief that the practice in
question--rather than available alternatives--was *important* to her
exercise of religion (something utterly lacking here--see my description
below).

The SG does not mention, in addition, that even if there were a substantial
burden here, RFRA would not require a religious exemption because the
government has a compelling interest in not violating the Free Speech
Clause.

On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Now that Paul Clement has filed a cert. petition
> 
> in this case, I thought I might revive the thread, which didn't inspire any
> reactions last time around!  Perhaps I'm alone, but it strikes me that the
> case raises a very interesting and important question about how to assess
> whether a burden on religious exercise is "substantial" for RFRA purposes.
> To recap the very straightforward facts:
>
> 1.  Marine Corps Lance Corporal Monfia Sterling posted three identical
> signs in her workspace, each containing only the words “No weapon formed
> against me shall prosper”--two of them in large (28-point) font.  The
> statement derives from Isaiah 54:17.  She posted one sign on the side of
> her computer tower, one above her computer screen, and one above her desk
> mailbox. The signs were large enough for those walking by her desk, and
> Marines seated at her workspace, to read.
>
> 2.  Her superior officer insisted that she take the signs down; indeed,
> that officer threw her signs in the trash, and she continued to repost
> them.  Therefore Sterling was court-martialed for insubordination, and
> sentenced to a bad-conduct discharge and a reduction in pay grade--no
> small thing in terms of sanctions.  As far as the record shows, her
> superior officer was not motivated by the fact that the signs were, or 
> Sterling
> was, religious--he would have done the same no matter what the employee's
> motivation was, and no matter whether the signs were scriptural.
>
> 3.  Sterling testified that the signs had religious significance to her,
> and that she posted them in response to difficulties she was experiencing
> at work.  They were, she testified, a "mental reminder” to her and that
> she did not intend to “send a message to anyone” else.  Paul's petition
> asserts, without citation to the record, that "[t]he conduct at issue was
> an undisputed exercise of religion by LCpl Sterling to beseech a higher
> power for spiritual strength and fortitude in the face of challenges."
>  Although there's no evidence that Sterling intended any "beseeching," I
> think it's fair to say that she did intend to *invoke the words* of a
> higher power "for spiritual strength and fortitude in the face of
> challenges."  Sterling did not testify, or otherwise claim, however, that
> her religion mandated that she post the signs, or that it was a common
> practice or tenet of her religion.  More to the point, she apparently did
> not testify about *whether *or *why *posting the signs was important to
> her, or a significant part of her religious exercise.  She did not, for
> example, explain why it would not have been just as effective for her to
> post the signs in smaller font that others would not notice, or to use
> other means of "mentally reminding" herself.
>
> The Court of Appeals for the Armed Forces held that Sterling had failed to
> meet her RFRA burden because she did not establish either the "subjective
> importance of the conduct" to her religious exercise, or that such posting
> was a “tenet” or "precept” of her faith.
>
> My question:  Can it really be the case that Sterling has established a
> "substantial burden" on her religious exercise, without any evidence at all
> of how or why the posting of the bible verse at her desk, in a font big
> enough for bystanders to see, was at all important to her religious
> commitments or exercise?
>
> According to Paul Clement's petition, an inquiry into the "subjective
> importance" of the practice to the plaintiff is not only unnecessary under
> RFRA, but constitutionally prohibited--it "took the CAAF to a place no
> secular court is equipped or authorized to go."  "[A]ny sensible
> interpretation of the Religion Clauses must forswear a judicial inquiry into
> the 'subjective importance' of a religious practice."
>
> I'm genuinely curious:  What do others think of this argument?  Does
> (must?) RFRA truly treat any and all religiously motivated activity the
> same, regardless of how significant it is to the adherent's beliefs and
> practices?
>
>
>
>
>
> On Thu, Aug 11, 2016 at 12:29 PM, Marty Lederman  > wrote:
>
>> For purposes of a project I'm 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marty Lederman]

P.S.  I'd wager that most of the "left" also supports *O Centro*--indeed,
many might even argue for a *constitutionally* compelled exemption for
congregational ceremonial rituals of that kind.

This is all speculative, of course.

On Wed, Apr 26, 2017 at 7:27 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> I think there has been very, very little change on the "left" in terms of
> views on the funding and regulation *of houses of worship *(except that,
> perhaps, there's no longer any understanding of/sympathy for the "no
> funding" rule).  Far as I know, there aren't a lot of folks on the "left"
> who oppose *Amos*, or even *Hosanna-Tabor *as applied to actual
> ministers.
>
> On Wed, Apr 26, 2017 at 7:22 PM, Ira Lupu  wrote:
>
>> So is it correct to conclude that the struggle over LGBT rights explains
>> 100% of any change in public attitudes -- left and right-- about funding
>> and regulation of houses of worship? If not, what else explains the change?
>> The end of the fight between Protestants and Catholics about public funding
>> of religious schools?
>> On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> I think people are aware that funding may bring more regulation. Judges
>>> tend to defer to government conditions attached to money, even though some
>>> of those conditions raise serious questions of unconstitutional conditions.
>>>
>>>
>>>
>>> The fear has lost much of its force in part because of *Smith* and the
>>> underenforcement or nonenforcement of state RFRAs. If these institutions
>>> are going to be regulated anyway, they have less to lose by taking the
>>> money. And if you look at the history of evangelical schools, where many of
>>> these claims are coming from, first they fought out the regulatory issues,
>>> in mostly unsuccessful litigation and in state legislatures and before
>>> state boards of education. Only after most of those issues were resolved
>>> one way or the other did they begin to push for equal access to government
>>> money.
>>>
>>>
>>>
>>> I’m less certain about this second point, but I think that many of them
>>> feel that the risk of extra conditions attached to money is smaller than
>>> the risk of fighting a culture war where the other side is government
>>> funded.
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Douglas Laycock
>>>
>>> Robert E. Scott Distinguished Professor of Law
>>>
>>> University of Virginia Law School
>>>
>>> 580 Massie Road
>>>
>>> Charlottesville, VA 22903
>>>
>>> 434-243-8546 <(434)%20243-8546>
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Eric J Segall
>>>
>>>
>>> *Sent:* Wednesday, April 26, 2017 5:17 PM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
>>> Special Treatment or Not?
>>>
>>>
>>>
>>> When I worked for DOJ in the late 80's and litigated a major Chapter
>>> (now I think Title) 2 funding case in San Francisco, the main plaintiff's
>>> lawyer was a devout 7th Day Adventist who strongly feared government grants
>>> to religious schools would ultimately dissipate religious freedom. Many
>>> religious folks at the time held this view. I agree with Marty and Chris
>>> that this view seems to have largely disappeared.
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Eric
>>>
>>> Sent from my iPhone
>>>
>>>
>>>
>>> ___
>>> 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.
>>
>> --
>> Sent from Gmail Mobile
>> F. Elwood & Eleanor Davis Professor of Law
>> George Washington University
>>
>> ___
>> 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.
>>
>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937 <(202)%20662-9937>
>
>


-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
___
To post, send message to Religionlaw@lists.ucla.edu

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Ira Lupu]

So is it correct to conclude that the struggle over LGBT rights explains
100% of any change in public attitudes -- left and right-- about funding
and regulation of houses of worship? If not, what else explains the change?
The end of the fight between Protestants and Catholics about public funding
of religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> I think people are aware that funding may bring more regulation. Judges
> tend to defer to government conditions attached to money, even though some
> of those conditions raise serious questions of unconstitutional conditions.
>
>
>
> The fear has lost much of its force in part because of *Smith* and the
> underenforcement or nonenforcement of state RFRAs. If these institutions
> are going to be regulated anyway, they have less to lose by taking the
> money. And if you look at the history of evangelical schools, where many of
> these claims are coming from, first they fought out the regulatory issues,
> in mostly unsuccessful litigation and in state legislatures and before
> state boards of education. Only after most of those issues were resolved
> one way or the other did they begin to push for equal access to government
> money.
>
>
>
> I’m less certain about this second point, but I think that many of them
> feel that the risk of extra conditions attached to money is smaller than
> the risk of fighting a culture war where the other side is government
> funded.
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Eric J Segall
>
>
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> When I worked for DOJ in the late 80's and litigated a major Chapter (now
> I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer
> was a devout 7th Day Adventist who strongly feared government grants to
> religious schools would ultimately dissipate religious freedom. Many
> religious folks at the time held this view. I agree with Marty and Chris
> that this view seems to have largely disappeared.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
>
> ___
> 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.

-- 
Sent from Gmail Mobile
F. Elwood & Eleanor Davis Professor of Law
George Washington University
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RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

Not all of the same folk who complain about government funding.


There are still some of us left who support the old model of significant 
limitations on government funding of religious institutions and significant 
protection of religious institutions from government regulation and 
interference.


What I see developing, unhappily, is both conservatives and liberals accepting 
a minimalist, formalistic understanding of the religion clauses. Constitutional 
prohibitions will invalidate overt discrimination against religion through 
regulation or funding.

Neutral regulations and conditions accompanying funding will be grist for the 
political mill. I suspect that the end result will be increased polarization 
and antipathy in our society and a patchwork quilt of distinct environments. A 
lot may depend on where one lives.


Alan


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marc Stern 
Sent: Wednesday, April 26, 2017 2:47:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:
Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[James Oleske]

I'm confused about how the "deal" has changed.

The Title VII exemption allowing religious preferences by religious
organizations has remained the same since its expansion in 1972, and the
key cases rejecting its application to other types of discrimination were
decided in the 1980s -- the same period Eric refers to below. See Rayburn
v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) ("While the language of § 702 makes clear that religious institutions
may base relevant hiring decisions upon religious preferences, Title VII
does not confer upon religious organizations a license to make those same
decisions on the basis of race, sex, or national origin.") (collecting
cases).

The Court unanimously recognized the ministerial exception in 2012,
explicitly following the pattern established by the circuit courts since
the 1970s.

Sure, there are some commentators who opposed both the 1972 expansion of
the Title VII exemption and the Court's 2012 recognition of the ministerial
exception, but I'm having difficulty seeing how the prevailing
understanding of "church autonomy" to "hire and fire for religious reasons"
has changed.

- Jim


On Wed, Apr 26, 2017 at 2:47 PM, Marc Stern  wrote:

> That’s all true, but the deal used to be no funding and lots of church
>  autonomy in return., including the right to hire and fire for religious
> reasons. The same folks who complain about government funding are quite
> willing to  allow government regulation of religious organizations with our
> regard to funding.
>
>
>
> Marc D. Stern
>
> General Counsel
>
> AJC
>
> 212 891 1480 <(212)%20891-1480>
>
> 646 289 2707 <(646)%20289-2707> (c )
>
> 212 891 1495 <(212)%20891-1495> (f)
>
> ste...@ajc.org
>
> www.ajc.org
>
> Facebook.com/AJCGlobal 
>
> Twitter.com/AJCGlobal 
>
> [image: Description: cid:image005.jpg@01CFA04D.71B24C30]
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Eric J Segall
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> When I worked for DOJ in the late 80's and litigated a major Chapter (now
> I think Title) 2 funding case in San Francisco, the main plaintiff's lawyer
> was a devout 7th Day Adventist who strongly feared government grants to
> religious schools would ultimately dissipate religious freedom. Many
> religious folks at the time held this view. I agree with Marty and Chris
> that this view seems to have largely disappeared.
>
>
>
> Best,
>
>
>
> Eric
>
> Sent from my iPhone
>
>
> On Apr 26, 2017, at 5:03 PM, Christopher Lund  wrote:
>
> Marty makes some good points here.
>
>
>
> It leads me back to a recurring thought I’ve had about *Trinity Lutheran*
> and *Dignity Health*.  They don’t have much in common.  But in both
> cases, the rationale for distinctive treatment rests on an old
> separationist rationale that few people believe anymore or even
> understand.  “Separation for the sake of separation,” they will say.  Marty
> talks about *Trinity Lutheran *this way and he’s right, but I think *Dignity
> Health* is strikingly similar.  If *Dignity Health* were litigated today,
> and the religious exemption were requested under RFRA or *Sherbert/Yoder*,
> would it even raise a genuine issue?  I assume not—I can’t see a cognizable
> burden on religion.
>
>
>
> Things are changing all around.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu ] *On Behalf Of *Marty
> Lederman
> *Sent:* Saturday, April 22, 2017 11:36 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> Yes, but neither before, nor during, nor after, that 14-year window
> (1971-1985) did the Court ever suggest that direct money payments to a
> church would be constitutional under the Establishment Clause -- let alone
> that a state would be constitutionally *prohibited *from adhering to such
> a bright-line rule, something that 39 states have done for 200 or so years
> (Missouri's prohibition having been in its Constitution when it joined the
> union in 1821).  (And even in the states that do not have such an express
> prohibition, and within the federal government, I am not aware of *any 
> *practice,
> until 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Marc Stern]

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:
Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Alan E Brownstein]

What I find most surprising is that the demise of the argument that government 
funding will undermine religious freedom is occurring at a time when the 
argument may well turn out to be accurate at least in some locations.


It may be that for many people on the left the failure of the church autonomy 
and religious freedom arguments against state funding of religious institutions 
reflects a lack of commitment to both of these values and a reluctance to 
present arguments that reinforce either interest.


Government control will follow government funding. Not everyone thinks that is 
a bad result today.


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Eric J Segall 
Sent: Wednesday, April 26, 2017 2:16:56 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this 

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Eric J Segall]

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause constraint been virtually forgotten, the Court is likely 
on the verge of replacing a "no funding" prohibition with a "must fund" 
requirement!

He's also right that one major reason why this could happen is that the 
rationales for the "no funding" rule--in particular, Madison's 
church-autonomy-protective rationales--have virtually disappeared from the 
litigation, and from the public discourse more broadly.  (Note, for instance, 
that in Mitchell, O'Connor refers to "the original object of the Establishment 
Clause’s prohibition" without mentioning what it might be.)  One minor 
exception is the BJC amicus 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Christopher Lund]

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause constraint been virtually forgotten, the Court is likely 
on the verge of replacing a "no funding" prohibition with a "must fund" 
requirement!

He's also right that one major reason why this could happen is that the 
rationales for the "no funding" rule--in particular, Madison's 
church-autonomy-protective rationales--have virtually disappeared from the 
litigation, and from the public discourse more broadly.  (Note, for instance, 
that in Mitchell, O'Connor refers to "the original object of the Establishment 
Clause’s prohibition" without mentioning what it might be.)  One minor 
exception is the BJC amicus 
brief
 [disclosure:  I consulted on it]; but its arguments, which were once so 
prominent in Religion Clause jurisprudence and scholarship, apparently no 
longer resonate with the audience that matters, including, perhaps, the author 
of Rosenberger, who once "recognized special Establishment Clause dangers where 
the government makes direct money payments to sectarian institutions” and 
purported to be committed to "guard[ing] against this abuse.”

On Sat, Apr 22, 2017 at 11:07 AM, Laycock, H Douglas (hdl5c) 
> wrote:

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