Neither Eugene's or Alan's questions invite quick or easy answers, but here's a start:
1. Eugene's examples all involve health and safety. None can be diverted to religious use; all make religious use, and all other uses of the property, healthier or safer. Compare Mitchell v. Helms -- in-kind aid to schools, public and private, in poor areas. The aid included things like computers, books, AV equipment, etc. Plurality said that neutral distributional criteria (public and private schools, no sectarian discrimination) is all you need. Dissent said divertibility of aid to religious use is fatal. Controlling opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not divertibility, so the program is OK because it contains adequate (and non-entangling) safeguards against religious use. That is the Establishment Clause right now. Trinity Lutheran Church seems to me to fall between Eugene's examples and Mitchell. The playground will be safer for play, but it will also be more useable as space for worship and religious instruction. Improving the playground sufficiently would be (imperfectly) analogous to adding a new classroom to a religious school. Divertible to religious use -- without safeguards, unconstitutional. Missouri could reasonably conclude that a grant to churches and church schools for playground surfaces would require safeguards that would indeed entangle the church and the state (how do you enforce the restriction on religious instruction on the playground in a pre-school?) So, whether or not the grant would ultimately violate the First Amendment, it would present a problem of direct government support for religious instruction, and Missouri wants to avoid that federal and state constitutional problem. There's the play in the joints. This is not how Missouri argued this case below, but it is how it should argue in the Supreme Court. 2. Alan's massive package of church-state separation policies -- each one has to be evaluated retail. And, for starters, the regulatory immunities he suggests -- e.g., Need not comply with 1) many land use regulations that secular institutions must obey; 2) any government regulation unless the regulation was determined to be the least restrictive means of furthering a compelling state interest; and 3) many generally applicable anti-discrimination laws -- cannot possibly be justified under the Establishment Clause. They all prefer religious entities over analogous secular entities (e.g., a secular pre-school or day care center) without any demonstration that the immunity is necessary to, or even related to, freeing the religious entity from restrictions on its ability to carry out its religious mission. Bottom line -- direct financial aid has to be disconnected from religious mission. Accommodations have to remove distinctively religious burdens, and therefore permit the private accomplishment of religious mission (not just make it cheaper to carry out; if that is all that is happening, that would be impermissible aid), as well as not inflict significant harm on third parties, which some of Alan's proposed immunities would do. These are all Establishment Clause principles reflected in the current law, are they not? On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Two quick question for list members about Trinity Lutheran, > if I might. Say that the government offered grants to schools and day care > centers, on a largely nondiscretionary basis, for the following: > > > > 1. Removing potentially cancer-causing asbestos. > > > > 2. Retrofitting for earthquake safety. > > > > 3. Hiring security guards to prevent gang violence (and > intercede in mass shootings and the like). > > > > 4. Eradicating mosquitos on the property that carry some > dangerous virus (e.g., West Nile Virus). > > > > (Assume all the grants came with the usual penalties for misuse of state > funds, including criminal penalties for willful misuse.) But say that the > government expressly stated that religious institutions – and thus the > children who go to those institutions – can’t benefit from such grants. > > > > If you think that the exclusion in Trinity Lutheran is > constitutional, do you think all these exclusions would be, too? > > > > If you think that the exclusion in Trinity Lutheran is > actually mandated by the First Amendment, do you think all these exclusions > would be, too? > > > > Eugene > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
