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

[Ira Lupu]

Doug, I make no originalist claims about the scope of the "no aid"
principle under the federal Establishment Clause.  Chapter 3 of Lupu &
Tuttle, Secular Government, Religious People makes a "nuanced" (thank you)
argument about the normatively appropriate scope of that principle.  The
principle is not "no money for churches" -- it is "the state should not be
responsible for the formation of religious character, through religious
worship, instruction, or proselytizing." Government aid to secular
functions of faith-based entities is thus OK, and we recognize that drawing
the religious/secular line can be quite difficult.  I think the playground
grants in Missouri would not violate the Establishment Clause if the church
had to promise to make no religious use of the playground (just like the
schools in Mitchell v. Helms had to promise to make no religious use of
computers, etc).

As for the scope of state constitutional no funding provisions, I have
never offered any definitive view of federal constitutional boundaries on
them.  They would obviously violate the First A if they involved explicit
sectarian favoritism or animus.  Under current political circumstances, I
think state decision-makers can be trusted to make sensible decisions about
the scope of their own constitutional limitations.  Missouri is showing how
state politics might shape those decisions at the margins.  So Trinity
Lutheran Church, like Locke v. Davey, which Doug also criticized, is
federalism operating -- each state with its own policies about church-state
separation, and no obvious reason for federal constitutional interference.

On Sat, Apr 22, 2017 at 12:46 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> 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-bounces@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> 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 

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

[Laycock, H Douglas (hdl5c)]

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 
> 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) >
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 
>



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 

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

[Ira Lupu]

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> 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) 
> 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 
>
>
> 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 the*Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and *Board of Education v. Allen* in 1968, and all the cases
> from*Witters* 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 [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [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 

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

[Eric J Segall]

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 
> 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) >
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 
>



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 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [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 

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

[Marty Lederman]

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) <
hd...@virginia.edu> 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 the inconsistencies of the *Lemon*-era cases.
> And the social welfare benefit principle accounts for the result in
> *Everson*, and *Board of Education v. Allen* in 1968, and all the cases
> from *Witters* forward.
>
>
>
> 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-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [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 

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

[Mark Scarberry]

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) >
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 
>



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 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [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 

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

[Laycock, H Douglas (hdl5c)]

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 the Lemon-era cases. And the social welfare 
benefit principle accounts for the result in Everson, and Board of Education v. 
Allen in 1968, and all the cases from Witters 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 [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [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 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 
> 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 

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

[Ira Lupu]

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  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)" 
> wrote:
>
>> The funding question resolved in the founding generation was special
>> allocation of public funds, not part of any broader program or