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

[Failinger, Marie]

My class discussed this problem of government funding of parochial schools 
yesterday.   Most retreated to the simplistic model of “don’t take the money if 
you don’t want the conditions,”  which isn’t very reflective about the deeper 
and longer-term issues involved in financial interdependence between religion 
and the state.   They had great difficulty thinking through how far the 
government might, legally can and ethically should go in imposing majoritarian 
values on religious schools.

It does not seem that my students realize that, in an era of declining 
voluntary support for some religious institutions, some of them  truly hurting 
for money (especially to compete with the more lavishly appointed suburban 
public schools) may be tempted to take the money and either ignore the 
conditions or ignore the effect that complying with the conditions will have 
eventually on their community values.  Of course, these same temptations can 
also be presented by a tuition-financed religious school that finds itself 
catering to the consumerist mentality of parents who are paying significant 
tuition to send their children to religious schools and therefore expect them 
to compete with public schools in amenities, ethos and programs.

Partly, I think, this is partly due to the fact that the virtue and habit of 
benevolence and shared community sacrifice has not been passed down very well 
to the non-gray-haired members of Christian congregations in some 
denominations.As just one example, in my church body, which is more 
mainstream, many (perhaps most) church schools have gone from being largely 
supported through congregational giving (in which all of the people in the 
congregation essentially took care of the children of the church school) to 
tuition to be paid by the parents, with perhaps some limited scholarships for 
low-income people and perhaps meager support from the congregation.  This 
is not only true in the struggling congregations but in the wealthy 
congregations, where such support should be easily available.

Perhaps the justices who asked these questions are responding to this “reality 
on the ground” more than trying to stake out a different ideological approach.  
 However, I really wonder some days if the “voluntary principle” will work for 
the future in this much altered climate of expectations about religious 
benevolence, if our church body’s experience is representative.

Marie A. Failinger  |  Professor of Law
651-695-7658 |  Fax: 651-290-6414
marie.failin...@mitchellhamline.edu<mailto:marie.failin...@mitchellhamline.edu>

Mitchell Hamline School of Law
875 Summit Ave. | St. Paul, MN 55105
Great in theory. Even better in practice.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Wednesday, April 26, 2017 5:20 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?


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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Marc Stern <ste...@ajc.org<mailto:ste...@ajc.org>>
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<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.twitter.com/AJCGlobal>

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) 
<hd...@virginia.edu<mailto: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> 
[mailto: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<mailto: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


___
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George Washington University
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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 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> 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<mailto: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> 
[mailto: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<mailto: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


___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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George Washington University
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Please note that messag

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 <icl...@law.gwu.edu> 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 Pr

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 <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
___
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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 <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 
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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.

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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Marc Stern <ste...@ajc.org>
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<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.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 
<l...@wayne.edu<mailto:l...@wayne.edu>> 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<mailto: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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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<https://na01.safelinks.pr

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 <ste...@ajc.org> 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 <http://www.facebook.com/AJCGlobal>
>
> Twitter.com/AJCGlobal <http://www.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 <l...@wayne.edu> 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 <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 <religionlaw@lists.ucla.edu>
> *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 wou

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<mailto:ste...@ajc.org>
www.ajc.org<http://www.ajc.org/>
Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal>
Twitter.com/AJCGlobal<http://www.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 
<l...@wayne.edu<mailto:l...@wayne.edu>> 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<mailto: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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (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 r

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 <religionlaw-boun...@lists.ucla.edu> 
on behalf of Eric J Segall <eseg...@gsu.edu>
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 
<l...@wayne.edu<mailto:l...@wayne.edu>> 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<mailto: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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (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 religi

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 
<l...@wayne.edu<mailto:l...@wayne.edu>> 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<mailto: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> 
[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 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F04%2FTrinityLutheranMeritsAmicusUOJC.pdf=02%7C01%7Cesegall%40gsu.edu%7C4113557cc6a04564b6ea08d48ce79f6a%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636288373819212581=8wP0jXS3l%2BV%2F8FQ5DKa1hmPwz8xK3%2BUnGBTqbBUlgf0%3D=0>
 (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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2016%2F07%2F15-577-BJC-Amici-Respondent.pdf=02%7C01%7Cesegall%40gsu.edu

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 <religionlaw@lists.ucla.edu>
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<http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranMeritsAmicusUOJC.pdf>
 (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<http://www.scotusblog.com/wp-content/uploads/2016/07/15-577-BJC-Amici-Respondent.pdf>
 [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<mailto: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 mone

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
>>

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 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, be

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) <hd...@virginia.edu>
> Sent: Saturday, April 22, 2017 8:09 AM
> Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>
>
> 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 

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 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of theLemon-era cases. And the social welfare 
benefit principle accounts for the result inEverson, and Board of Education v. 
Allen in 1968, and all the cases fromWitters forward.



Douglas Laycock

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the fed

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
<http://www.scotusblog.com/wp-content/uploads/2016/04/TrinityLutheranMeritsAmicusUOJC.pdf>
(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
<http://www.scotusblog.com/wp-content/uploads/2016/07/15-577-BJC-Amici-Respondent.pdf>
[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 Establis

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) <hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of theLemon-era cases. And the social welfare 
benefit principle accounts for the result inEverson, and Board of Education v. 
Allen in 1968, and all the cases fromWitters forward.



Douglas Laycock

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Ira Lupu [icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the federal constitution; rather, it is whether equal 
funding is required by the federal constitution.

4) I understand completely the normative objections to a no funding rule when 
the state is subsidizing public safety.  And I understand the Church's 
arguments from the equal protection clause, and the free exercise clause, that 
suppo

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 
<mich...@californialaw.org<mailto:mich...@californialaw.org>> wrote:


As to the "secular function" argument, is it truly a secular function?  
Churches would claim that secular functions are not religious functions but at 
the same time are also saying, "We are doing something that secular 
organizations also do, but we are going to limit access in ways that secular 
non-profits by law cannot."   I don't know that such a position is tenable 
given the gestalt of the post-Obergefell age.

Further, many religious elementary schools as a rule do not generally 
distinguish between secular and religious portions but try to provide a 
wholistic spiritual atmosphere in all aspects of their activities and 
properties.  Having said this, I do believe the Court will avoid trying to 
figure out how secular or religious the use is, but rather take the 
organization's word that is is "secular."

And doesn't the "secular" designation invite secular regulation?

If the law required defibrillators and the state gave grants to secular 
institutions but denied them to religious schools that would be an entirely 
different matter. After all, a defibrillator has a clear purpose and can't be 
used for anything else. But here there is no such mandate for a rubber 
playground and a playground can be used for many things.

On a pers

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

[Ira Lupu]

>
> On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
> wrote:
>
>> The funding question resolved in the founding generation was special
>> allocation of public funds, not part of any broader program or category, to
>> support the core religious functions of churches -- the salaries of clergy
>> mostly, but also sometimes the construction of churches, or the income from
>> glebe lands, which could be used for any purpose the church chose. That
>> kind of expenditure was and is unconstitutional; there is no modern dispute
>> about that.
>>
>>
>>
>> In that environment,  the principle of no discrimination in favor of or
>> against religion was entirely consistent with the principle of no funding
>> for religion. There were no programs of funding broad categories of private
>> activities.
>>
>>
>>
>> Today's issue is nondiscriminatory funding of secular functions carried
>> out by religious organizations in religious contexts. Now the principles of
>> no discrimination and no funding squarely conflict, and we have to choose
>> between them. And the founding generation did not make that choice.
>>
>>
>> Douglas Laycock
>> Robert E. Scott Distinguished Professor of Law
>> University of Virginia
>> 580 Massie Road
>> Charlottesville, VA 22903
>> 434-243-8546 <(434)%20243-8546>
>> --
>> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucl
>> a.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
>> *Sent:* Friday, April 21, 2017 4:52 PM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
>> Special Treatment or Not?
>>
>> I have been struck this week by how almost all of the pro-state
>> discussion of Trinity Lutheran has focused on the problem of discrimination
>> by state funded churches (i.e., why should taxpayers fund activities from
>> which some are invidiously excluded?).  It's as if we (academics as well as
>> informed journalists) have all forgotten the origins and justifications of
>> no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
>> of such rules, is certainly not concerned with discrimination by recipient
>> churches.  It is, rather, focused on other policies that justify separation
>> in funding matters -- religious voluntarism (not forcing taxpayers to
>> subsidize faiths with which they disagree or agree); the danger of church
>> dependence on the state; mutual corruption of church and state that
>> financial relationships might produce, etc.. As John Ely wisely wrote, the
>> Establishment Clause is a separation of powers provision, and the same is
>> true for the state constsitutions' no-funding provisions, including
>> Missouri's.
>> Of course, times have changed, and the state now provides many more forms
>> of largesse, including funds for safe playground surfaces. So we can argue
>> about whether it is wise to relax state-based no funding rules (the 1st A
>> rules have already been relaxed to some extent), or whether it is fair to
>> exclude churches from some forms of largesse. (No one is excluding them
>> from police and fire protection).  My point here is that the Madisonian
>> understanding of church-state separation, and the no-funding rules that
>> followed, has been largely lost.  Maybe that's because the fight, so
>> prominent from the mid-19th century until relatively late in the 20th
>> century, about funding Catholic schools has long been over. Maybe our
>> collective forgetfulness about the Madisonian narrative is also about the
>> expanded welfare state, where religious communities play a huge partnership
>> role.  Maybe we now have full confidence in religious pluralism and the
>> unlikelihood of sectarian discrimination by the state, though the
>> continuing experience of Muslims and Native Americans in the U.S. should be
>> a cautionary note on that one.
>> All I know for sure is that the conversation has changed.  Not even
>> Justices Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday
>> of maintaining continuity with that tradition.  When the no-funding
>> tradition is reduced to a formal rule -- the state cannot write a check to
>> the church -- it will soon disappear in the face of countervailing legal
>> and political pressure.
>> And I must add that the idea that the Free Exercise Clause, as *an
>> original matter*, entitles houses of worship to equal treatment in state
>> funding arrangements seems spectacula

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

[Michael Peabody]

As to the "secular function" argument, is it truly a secular function?
Churches would claim that secular functions are not religious functions but
at the same time are also saying, "We are doing something that secular
organizations also do, but we are going to limit access in ways that
secular non-profits by law cannot."   I don't know that such a position is
tenable given the gestalt of the post-Obergefell age.

Further, many religious elementary schools as a rule do not generally
distinguish between secular and religious portions but try to provide a
wholistic spiritual atmosphere in all aspects of their activities and
properties.  Having said this, I do believe the Court will avoid trying to
figure out how secular or religious the use is, but rather take the
organization's word that is is "secular."

And doesn't the "secular" designation invite secular regulation?

If the law required defibrillators and the state gave grants to secular
institutions but denied them to religious schools that would be an entirely
different matter. After all, a defibrillator has a clear purpose and can't
be used for anything else. But here there is no such mandate for a rubber
playground and a playground can be used for many things.

On a personal note, I am a strong supporter of parochial education​. I send
both of my kids to religious schools at considerable expense. But I am
concerned with the trending winnowing away of the religious character of
these institutions if they begin to accept state funds and the state
imposes hiring, curriculum, and other regulations that impinge on this
character in order to protect the taxpayers' secular investment.

Ultimately, I do anticipate that the Court, if it reaches the merits, will
find in favor of Trinity Lutheran and accept the school's word that the
playground will be used for secular purposes.

Given the bakery and photographer cases, and threats to require facilities
to be open to all comers, I think a follow-up round of litigation on usage
will be unavoidable and given the results of the existing wedding services
cases involving small businesses, it would seem that churches ought to be
wary of what is lurking on the horizon if Trinity wins.

Thank you for the very informative and thoughtful points and discussion.

Michael Peabody, Esq.
President,
Founders First Freedom

On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu>
wrote:

> The funding question resolved in the founding generation was special
> allocation of public funds, not part of any broader program or category, to
> support the core religious functions of churches -- the salaries of clergy
> mostly, but also sometimes the construction of churches, or the income from
> glebe lands, which could be used for any purpose the church chose. That
> kind of expenditure was and is unconstitutional; there is no modern dispute
> about that.
>
>
>
> In that environment,  the principle of no discrimination in favor of or
> against religion was entirely consistent with the principle of no funding
> for religion. There were no programs of funding broad categories of private
> activities.
>
>
>
> Today's issue is nondiscriminatory funding of secular functions carried
> out by religious organizations in religious contexts. Now the principles of
> no discrimination and no funding squarely conflict, and we have to choose
> between them. And the founding generation did not make that choice.
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546 <(434)%20243-8546>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Friday, April 21, 2017 4:52 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> I have been struck this week by how almost all of the pro-state discussion
> of Trinity Lutheran has focused on the problem of discrimination by state
> funded churches (i.e., why should taxpayers fund activities from which some
> are invidiously excluded?).  It's as if we (academics as well as informed
> journalists) have all forgotten the origins and justifications of
> no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
> of such rules, is certainly not concerned with discrimination by recipient
> churches.  It is, rather, focused on other policies that justify separation
> in funding matters -- religious voluntarism (not forcing taxpayers to
> subsidize faiths with which they disagree or agree); the danger of church
> dependence on the state; mutual corruption

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

[Laycock, H Douglas (hdl5c)]

The funding question resolved in the founding generation was special allocation 
of public funds, not part of any broader program or category, to support the 
core religious functions of churches -- the salaries of clergy mostly, but also 
sometimes the construction of churches, or the income from glebe lands, which 
could be used for any purpose the church chose. That kind of expenditure was 
and is unconstitutional; there is no modern dispute about that.



In that environment,  the principle of no discrimination in favor of or against 
religion was entirely consistent with the principle of no funding for religion. 
There were no programs of funding broad categories of private activities.



Today's issue is nondiscriminatory funding of secular functions carried out by 
religious organizations in religious contexts. Now the principles of no 
discrimination and no funding squarely conflict, and we have to choose between 
them. And the founding generation did not make that choice.



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

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, April 21, 2017 4:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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 
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messages to others.

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

[Mark Scarberry]

One question is what to do when governments at all levels control more and more 
resource allocations (far more I think than Madison could have expected). 
Programs that target religious institutions for particular affirmative benefits 
still should be highly suspect. Programs that deny equal access to resources 
impose more and more of a burden as governments grow.

Some "benefits" may appropriately be seen as attempts to respect separate space 
for religious organizations and for religious obligations.

Mark

Mark S. Scarberry
Pepperdine University School of Law

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Friday, April 21, 2017 2:51:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, th

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

[Volokh, Eugene]

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.
___
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.

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

[Eric J Segall]

ular counterparts, it should be protected against certain burdensome 
land use regulations -- then why shouldn't the pre-school be conceptualized as 
religious for the purpose of determining its eligibility to receive government 
funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Michael Peabody 
<mich...@californialaw.org<mailto:mich...@californialaw.org>>
Sent: Thursday, April 20, 2017 8:47:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org<http://foundersfirstfreedom.org>

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 

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

[Ira Lupu]

lely on
> anecdotal evidence (but that includes a lot of talks to a lot of lay
> audiences and various advocates and advocacy groups for a lot of years) I
> suggest:
>
>
> Few arguments have been as effective in my discussions with progressive or
> secular audiences in arguing for distinctive treatment (e.g.
> accommodations) for religious individuals and institutions as the argument
> that the distinctiveness of religion is recognized and taken into account
> for establishment clause purposes and concerns in limiting government
> funding of religion.
>
>
> The unwillingness of progressive or secular groups to accept
> accommodations and exemptions for religious institutions increases
> exponentially when the religious institution receives government funds --
> and the rejection of accommodations reaches its zenith when the government
> funds support the very activities for which an accommodation is sought. An
> argument for religious institutional autonomy including exclusionary
> decisions that resonates with progressive and secular audiences is the idea
> that religious institutions are using private funds donated to them for the
> furtherance of sacred purposes and accordingly, they should be able to
> limit the use of those funds to only those activities and individuals that
> reflect that mission. That argument is not only unpersuasive, it is
> counterproductive, when public funds are at issue.
>
>
> At its harshest, the argument is expressed that religion will be
> characterized as sufficiently distinct from non-religion to require
> different treatment or sufficiently similar to non-religion to require
> similar treatment based solely on whichever characterization produces a
> favorably outcome for religion. When the characterization of religion
> is thought to be manipulated gamesmanship, support for religious liberty is
> diminished.
>
>
> At least this has been my experience.
>
>
> Alan
>
>
>
>
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists.
> ucla.edu> on behalf of Michael Peabody <mich...@californialaw.org>
> *Sent:* Thursday, April 20, 2017 8:47:24 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> Thank you. It is helpful and yet I see an ultimate collision between the
> dischordant rights to both be free from discrimination and also to
> discriminate.
>
> I suppose what I'm looking for is what happens when a church is able to
> get funding from the state for a project but then relies on free exercise
> to discriminate against a protected class in how that state-funded project
> is used.
>
> For instance, let's say that Trinity Lutheran gets it's playground and the
> state has a non-discrimination requirement.  Trinity normally uses the
> property but occasionally rents it out ay a nominal cost for events. An
> same-sex couple wants to get married there (obviously this particular
> example isn't perfect and I don't know what the church  thinks  about
>  same-sex marriage)  and the church declines the request citing religious
> reasons.
>
> In this scenario, Trinity would have achieved access to state-funded
> infrastructure by prevailing in a claim of anti-religious discrimination by
> the state, but then would claim that it could in turn discriminate in the
> use of this same infrastructure against LGBTQ persons. And if the state
> tried to enforce a non-discrimination policy, the church would claim the
> protection of church-state separation and defend its right to discriminate.
> So suddenly the already limited state resources are further hampered by
> virtue of the fact that the church is religious.
>
> So this circles around to the question - can a church that intends to use
> state funding in a discriminatory manner really present itself on an equal
> footing with secular non-profits when applying for state grants, or does
> the religious institution's discriminatory bent need to be taken into
> account when a state is dispensing limited state grants funds?
>
> Michael Peabody, Esq
> President,
> Founders First Freedom
> Foundersfirstfreedom.org
>
> On Apr 20, 2017 5:51 PM, "Christopher Lund" <l...@wayne.edu> wrote:
>
>> I don’t think there’s anything necessarily inconsistent with the two
>> positions you describe.  Religion might be entitled to special treatment in
>> some cases, but equal treatment in others.  (Doesn’t everyone, at some
>> level, believe that?)  Certainly the Court does.  The Court has, for
>> example, said that ministers must be accorded special (not equal) treatment
>&g

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

[Alan E Brownstein]

I think the question Michael poses is more complicated than his posts suggest 
in important respects, but I also think the dischordant rights argument he 
presents has substantial force.


>From an analytic perspective, because religion implicates not only liberty 
>values but group and identity values, and speech values, I think there are 
>cases where religion may need to be treated differently than non-religion and 
>situations where it should be treated the same as non-religion. But equality 
>and speech consequences present powerful counterweights to the idea that 
>religious institutions should as a general matter receive special exemptions 
>from general laws because of their distinctive nature while at the same time 
>be eligible for government grants and largess on the same terms as their 
>secular counterparts.


>From a policy perspective, I might rephrase Michael's question this way (my 
>apologies Michael if my rephrasing does not capture your meaning), If a 
>pre-school operated by an adjacent church should be conceptualized as 
>religious for the purpose of evaluating claims that 1. unlike its secular 
>counterparts, it should be permitted to discriminate on the basis of religious 
>belief and conduct in hiring staff -- including playground monitors; 2. unlike 
>its secular counterparts it should be permitted to discriminate on the basis 
>of religious belief and conduct in admitting students -- even if most of what 
>the students do is to play on the playground; 3. unlike its secular 
>counterparts it should be provided additional discretion in designing its 
>curriculum, and 4. unlike its secular counterparts, it should be protected 
>against certain burdensome land use regulations -- then why shouldn't the 
>pre-school be conceptualized as religious for the purpose of determining its 
>eligibility to receive government funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Michael Peabody <mich...@californialaw.org>
Sent: Thursday, April 20, 2017 8:47:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the c

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

[Laycock, H Douglas (hdl5c)]

Advocate Health Care does not present the question Mr. Peabody raises, or at 
least not squarely. The religious hospitals there do not seek exemption under 
some general guarantee of religious liberty; they seek to enforce a specific 
exemption that Congress enacted. The case is about statutory interpretation, 
and I expect the Court to treat it as such whichever way it decides.

The pipermail link in Chris Lund's post has citations to further academic 
discussion of the basic point. The interpretation of neutrality most consistent 
with liberty for all is neutral incentives, neither encouraging nor 
discouraging religion. That sometimes aligns with neutral categories, and 
sometimes requires exceptions.

Mr. Peabody's second post asks whether the church forfeits its free exercise 
rights when it accepts government funds. That is a question of unconstitutional 
conditions. The government's funding may increase the weight of its interest 
and tip the balance against exemptions in close cases. But the government 
should not generally be able to buy up constitutional rights with its general 
welfare spending.  And there is no connection between a safer playground 
surface and requiring a church to host a religious ceremony that violates its 
core teachings about marriage or any other religious matter.

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 Michael Peabody [mich...@californialaw.org]
Sent: Thursday, April 20, 2017 11:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people in

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

[Michael Peabody]

Thank you. It is helpful and yet I see an ultimate collision between the
dischordant rights to both be free from discrimination and also to
discriminate.

I suppose what I'm looking for is what happens when a church is able to get
funding from the state for a project but then relies on free exercise to
discriminate against a protected class in how that state-funded project is
used.

For instance, let's say that Trinity Lutheran gets it's playground and the
state has a non-discrimination requirement.  Trinity normally uses the
property but occasionally rents it out ay a nominal cost for events. An
same-sex couple wants to get married there (obviously this particular
example isn't perfect and I don't know what the church  thinks  about
 same-sex marriage)  and the church declines the request citing religious
reasons.

In this scenario, Trinity would have achieved access to state-funded
infrastructure by prevailing in a claim of anti-religious discrimination by
the state, but then would claim that it could in turn discriminate in the
use of this same infrastructure against LGBTQ persons. And if the state
tried to enforce a non-discrimination policy, the church would claim the
protection of church-state separation and defend its right to discriminate.
So suddenly the already limited state resources are further hampered by
virtue of the fact that the church is religious.

So this circles around to the question - can a church that intends to use
state funding in a discriminatory manner really present itself on an equal
footing with secular non-profits when applying for state grants, or does
the religious institution's discriminatory bent need to be taken into
account when a state is dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund"  wrote:

> I don’t think there’s anything necessarily inconsistent with the two
> positions you describe.  Religion might be entitled to special treatment in
> some cases, but equal treatment in others.  (Doesn’t everyone, at some
> level, believe that?)  Certainly the Court does.  The Court has, for
> example, said that ministers must be accorded special (not equal) treatment
> in some constitutional contexts (like their ability to bring
> employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that
> ministers must be accorded equal (not special) treatment in other
> constitutional cntexts (like their ability to sit in the constitutional
> convention—see McDaniel v. Paty).  And the Court was unanimous both times!
>
>
>
> For the classic reconciliation of the pro-exemption position and the
> equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and
> Substantial Neutrality, available here, http://via.library.depaul.edu/
> cgi/viewcontent.cgi?article=2059=law-review.  Or just read this,
> http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.
> I’d add my own thoughts, but I’m running out of time.
>
>
>
> Also, by the way, you could have just as easily framed your point the
> other way:  Why do people insist that religious groups are not entitled to
> special exemptions because of some dominant equality principle, but then
> yet insist that religious groups cannot even be treated equally when it
> comes to funding?
>
>
>
> (And I should say that I think both of those framings—both yours and
> mine—are misleading and ultimately too harsh on the people who hold those
> views.)
>
>
>
> 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 *Michael Peabody
> *Sent:* Thursday, April 20, 2017 8:06 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> This term the Supreme Court is hearing two cases involving whether or not
> churches should be treated the same as other non-profit organizations, and
> I want to make sure I have this straight.
>
>
>
> First, in *Advocate Health Care Network v. Stapleton*, heard March 27,
> religious hospitals are claiming that they should be treated differently
> from other non-profit organizations when it comes to whether they need to
> comply with ERISA regulations that require them to adequately fund employee
> pension plans. If I understand it correctly, their central argument is that
> they are so closely affiliated with churches that their plans are,
> effectively, "established and maintained ... by a church."
>
>
>
> In the hospital ERISA 

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

[Christopher Lund]

I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people insist that religious groups are not entitled to special 
exemptions because of some dominant equality principle, but then yet insist 
that religious groups cannot even be treated equally when it comes to funding?

(And I should say that I think both of those framings—both yours and mine—are 
misleading and ultimately too harsh on the people who hold those views.)

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 Michael Peabody
Sent: Thursday, April 20, 2017 8:06 PM
To: Law & Religion issues for Law Academics 
Subject: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

This term the Supreme Court is hearing two cases involving whether or not 
churches should be treated the same as other non-profit organizations, and I 
want to make sure I have this straight.

First, in Advocate Health Care Network v. Stapleton, heard March 27, religious 
hospitals are claiming that they should be treated differently from other 
non-profit organizations when it comes to whether they need to comply with 
ERISA regulations that require them to adequately fund employee pension plans. 
If I understand it correctly, their central argument is that they are so 
closely affiliated with churches that their plans are, effectively, 
"established and maintained ... by a church."

In the hospital ERISA cases, religious institutions are demanding special 
treatment BECAUSE they are religious.

Now, in Trinity Lutheran Church v. Pauley, heard April 19, a church is claiming 
that they should NOT be treated differently from other non-profit organizations 
when it comes to whether or not they can participate in a state program that 
provides funding for playground resurfacing material when doing so would 
violate the state constitution.

In the Trinity Lutheran case and as indicated by amici, religious institutions 
are demanding that they be treated THE SAME as secular non-profit organizations.

So do churches want to be treated in a discriminatory manner or not? It seems 
that if regulations could impose some kind of financial responsibility on them, 
church-state separation applies. Yet, if they can get some infrastructure 
upgrade benefit, churches want to fully participate with no such separation.

But what will happen if the state, in return, imposes non-discrimination 
provisions on the churches for the use of the state-funded infrastructure? 
Would they still be treated the same as other non-profits and be required to 
open their facilities to all, or will they then be able to assert the 
protection of church-state separation?


Michael Peabody, Esq.
President,
Founders First Freedom
foundersfirstfreedom.org


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