I just took a quick look at the briefs and decision below. Unless I missed
something, it appears that neither Missouri nor amici ACLU and Americans
United argued that the funding would violate the federal Establishment
Clause. This led the court of appeals to write: "We . . . recognize that
the Supreme Court’s Establishment Clause jurisprudence has evolved rather
dramatically in the forty years since Luetkemeyer was decided. For example, *it
now seems rather clear that Missouri could include the Learning Center’s
playground in a non-discriminatory Scrap Tire grant program **without
violating the Establishment Clause*." [No explanation of why that is
"rather clear." In fact, insofar as governing doctrine is concerned, it's
at best a close question under the EC.]
Given that Missouri appears committed to arguing for Locke v. Davey-like
"play in the joints," it's unlikely the state will argue, in the Supreme
Court, that funding would violate the EC. And without the state making
that argument, the Court will almost certainly not raise the matter
itself, *even
though under governing doctrine there's a very strong argument that the
funding would be unconstitutional*. In which case we'll have what's
arguably a major doctrinal change without the issue even being joined.
I don't want to overstate the importance of this: Even if the issue were
fully briefed, there are almost certainly five or more Justices who would
reject the notion that funding here would violate the EC. Still, it would
be rather remarkable if the Court were to hold, for the first time in
history(?), that the state can make direct grants to churches, in a case
where no party has even argued to the contrary.
On Sat, Jan 16, 2016 at 7:16 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:
> I concur with most of what Chip says, especially his important point that
> the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
> about the permissibility of diversion of the aid to religious activities
> (although of course the majority might choose to take the opportunity to do
> so).
>
> But this case is importantly different from *Mitchell* in two ways: it
> involves (i) provision of direct *money *grants (ii) to churches, as
> such. It thus implicates SOC's insistence that there are "special
> dangers associated with direct money grants to religious institutions,"
> which she thought has traditionally been "based on more than just
> diversion. *In fact, the most important reason for according special
> treatment to direct money grants is that this form of aid falls
> precariously close to the original object of the Establishment Clause's
> prohibition*." Of course, she never did explain just what she meant by
> that, although presumably she was referring to some sort of entanglement
> concern about the establishment of financial relationships between
> (literally) church and state.
>
> Whatever O'Connor meant, I'd be very surprised if there are five (or
> perhaps even three or four) current Justices who agree with SOC that there
> are special problems with aid to churches, as such, or who think that
> financial aid is constitutionally different from other sorts of aid, in a
> way that establishes a *categorical *constitutional
> disability--especially where, as here, the money is provided *only *as
> direct dollar-for-dollar reimbursement "for the purchase, vendor
> installation and delivery of the playground scrap tire surface material."
>
> All of which is to say that *Committee for Public Educ. v. Regan *might
> get a good deal of attention here.
>
> On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
>> Responding to Marty: [If it reversed], the Court would NOT necessarily
>> be saying "that the Establishment Clause does not prohibit direct
>> funding to churches, at least where (i) the criteria for funding are fairly
>> rote and nondiscretionary (as Eugene suggests they are here), and (ii) the
>> principal uses of the $$ are not for activities that involve "inherently
>> religious" matters." {Sorry for all those "nots.") The State of Missouri
>> did not defend its denial of the application on federal Establishment
>> Clause grounds. It defended on state constitutional law grounds, and it
>> argued that the state was free to have a broader ban on funding than the
>> Establishment Clause requires. That argument is about the scope of the
>> "play in the joints' between the Religion Clauses.
>>
>> Perhaps one cannot determine that scope without fixing the boundaries of
>> the Establishment Clause. That would bring Marty's concerns into play.
>> Under current Establishment Clause law re: direct funding, however, the
>> SOC-SB concurrence in Mitchell v. Helms represents the controlling law.
>> Under that opinion, direct aid to religious entities must have adequate
>> safeguards against diversion to religious use. There is absolutely no
>> reason for SCOTUS in this case to resolve the difference between that
>> concurring opinion and the Mitchell plurality, which rejected the demand
>> for safeguards against religious use. So if Missouri loses this case, and
>> makes the grant to Trinity Church, the grant would still have to include
>> safeguards against diversion -- that is, no use of the playground as an
>> outdoor classroom for religious instruction, or an outdoor venue for
>> worship services. I wonder if Trinity Church would want the grant on
>> those conditions, and it might litigate further. But a grant on those
>> conditions, unlike an outright denial, would certainly be within the play
>> in the joints, as they now stand. SCOTUS would have to be quite aggressive
>> to rewrite the Establishment Clause rules in a case where the state has not
>> relied on those rules to defend its action.
>>
>> Yes, it could happen, but it seems unlikely to me. Locke v. Davey was
>> 7-2 in favor of the state having discretion to refuse to fund a scholarship
>> for preparation in ministry, even if the Establishment Clause allowed it.
>> Scalia and Thomas would need three additional votes to narrow that
>> discretion, to squeeze it back to what the Establishment Clause forbids,
>> AND to adopt the Mitchell plurality view. They have 5 for the last of
>> those, but I suspect not for the first two.
>>
>> On Fri, Jan 15, 2016 at 9:34 PM, Marty Lederman <lederman.ma...@gmail.com
>> > wrote:
>>
>>> "one that could be decided quite narrowly (distinguishing Locke as being
>>> about a precisely focused state interest in not subsidizing training for
>>> ministry)."
>>>
>>> Yes, but in order to issue even that narrow holding, the Court would
>>> necessarily be saying--wouldn't it?--that the Establishment Clause does not
>>> prohibit direct funding to churches, at least where (i) the criteria for
>>> funding are fairly rote and nondiscretionary (as Eugene suggests they are
>>> here), and (ii) the principal uses of the $$ are not for activities that
>>> involve "inherently religious" matters. And that--a holding that the EC
>>> does not categorically prohibit direct funding to churches--would be fairly
>>> momentous, no? (even if we've all been expecting it since SOC left the
>>> Court)
>>>
>>> On Fri, Jan 15, 2016 at 8:32 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
>>>
>>>> According to the 8th Circuit opinion,
>>>> http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf,
>>>> the Missouri Constitution (Article I, Section 7) specifically provides
>>>> that “no money shall ever be taken from the public treasury, directly or
>>>> indirectly, in aid of any church, section or denomination of religion.” The
>>>> opinion says the Church's application, under this program for playground
>>>> resurfacing funds, ranked 5th (and there was money for 14) but was denied
>>>> under that state constitutional provision.
>>>>
>>>> The 8th Circuit rejected the federal constitutional claims (free
>>>> exercise, establishment clause, equal protection clause, free speech
>>>> clause) on the authority of Locke v. Davey, 2004 (WA state does not violate
>>>> the free exercise clause by refusing, for state constitutional reasons, to
>>>> allow state Promise Scholarship recipients to use the scholarships to study
>>>> in programs that train for religious ministry). So the federal
>>>> Establishment Clause may not require Missouri to reject the Trinity Church
>>>> application (although the playground could indeed be used for worship and
>>>> religious instruction), but the question remains whether the state may have
>>>> (as in Locke) a broader funding restriction than the 1st A requires.
>>>> An important case, but one that could be decided quite narrowly
>>>> (distinguishing Locke as being about a precisely focused state interest in
>>>> not subsidizing training for ministry).
>>>>
>>>> On Fri, Jan 15, 2016 at 6:19 PM, Marty Lederman <
>>>> lederman.ma...@gmail.com> wrote:
>>>>
>>>>> Just to be clear: The grants are not to pay teachers "teach," or to
>>>>> operate the school, as such, but instead to purchase used tires to be
>>>>> melted down into playground surfaces. The application here was for use at
>>>>> a playground at the church, to be used by children in the church daycare
>>>>> and preschool. The State received 44 applications and had funding to pay
>>>>> for 14 of them.
>>>>>
>>>>> On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
>>>>> slevin...@law.utexas.edu> wrote:
>>>>>
>>>>>> To what extent is it either required or ethically questionable to
>>>>>> point out, if one is objecting to conclusion “a” above, to point out that
>>>>>> any such doctrine would require “sovereign states” to pony money up to
>>>>>> Moslem schools, including, say, madrasas funded by Saudi Arabia in order
>>>>>> to
>>>>>> teach various pernicious Wahabi doctrines? As Donald Trump might put it,
>>>>>> I’m just asking, though, as with Trump, I’m confident that a lot of
>>>>>> Evangelical Christians who will not be happy with an argument that their
>>>>>> tax dollars have to go to fund Islamic schools.
>>>>>>
>>>>>>
>>>>>>
>>>>>> sandy
>>>>>>
>>>>>>
>>>>>>
>>>>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>>>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>>>>> *Sent:* Friday, January 15, 2016 4:15 PM
>>>>>> *To:* Law & Religion issues for Law Academics <
>>>>>> religionlaw@lists.ucla.edu>
>>>>>> *Subject:* Re: Cert Granted in Blaine Amendment case
>>>>>>
>>>>>>
>>>>>>
>>>>>> On first glance, this has the potential to be a huge case. Not only
>>>>>> will it almost certainly test the limits of *Locke v. Davey* (and,
>>>>>> perhaps, whether *Locke* even survives the departure of Rehnquist
>>>>>> and O'Connor) on the Free Exercise side, but it also is the first SCOTUS
>>>>>> case in 16 years -- since *Mitchell v. Helms *-- implicating whether
>>>>>> and under what circumstances a state can offer selective,
>>>>>> discretionary "direct funding" to a religious institution . . . indeed,
>>>>>> to
>>>>>> a church itself!
>>>>>>
>>>>>>
>>>>>>
>>>>>> Under O'Connor's controlling opinion in *Mitchell*, recall, there
>>>>>> remain "special dangers associated with direct money grants to religious
>>>>>> institutions," and the Court's "concern with direct monetary aid is based
>>>>>> on more than just diversion. In fact, the most important reason for
>>>>>> according special treatment to direct money grants is that this form of
>>>>>> aid
>>>>>> falls precariously close to the original object of the Establishment
>>>>>> Clause's prohibition."
>>>>>>
>>>>>>
>>>>>>
>>>>>> It'd be quite something if the Court moved from the current view that
>>>>>> such funding is constitutionally prohibited (e.g., *Tilton, Nyquist*,
>>>>>> the SOC opinion in *Mitchell*) to the view that it's
>>>>>> constitutionally required (i.e., that the state can't discriminate
>>>>>> against
>>>>>> the church as recipient of the direct aid); but in light of the
>>>>>> composition
>>>>>> of the current Court, that's a very real possibility.
>>>>>>
>>>>>>
>>>>>>
>>>>>> In theory, at least, all three dispositions are in play:
>>>>>>
>>>>>>
>>>>>>
>>>>>> i. Missouri must fund the church
>>>>>>
>>>>>> ii. Missouri can't fund the church
>>>>>>
>>>>>> iii. Missouri has discretion to go either way (which in this case
>>>>>> would mean no funding, per the Missouri Constitution)
>>>>>>
>>>>>>
>>>>>>
>>>>>> If I had to guess, I'd say (ii) is the least likely outcome, even
>>>>>> though that's been the governing law for many decades.
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
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