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
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
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
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
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
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
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
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,
