For the record, my reform temple regularly held religious activities in the
playground. A playground is a very good place for making religious points for
6 and 7 year olds.
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, January 17, 2016 12:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits
I suppose it’s possible, but it doesn’t seem that likely. From
what I’ve seen, the springy recycled-tire surface tends to be used by swing
sets, monkey bars, slides, and the like – not the optimal place for an “’old
time religion’ tent revival” or even an Easter Sunrise Service. A soccer
field, a baseball diamond, or tennis courts might be a better place, but I
think they generally don’t use rubber surfaces (since that would throw off the
play of the game).
But in any event, if such a service is held on a resurfaced
playground, the resurfacing would have done little to help the service; the
service can be held on all kinds of surfaces. Resurfacing is important when
kids are running, climbing, and tumbling, not when they’re standing still.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits
without getting too far into the details here; there are many times when
religions hold outdoor services, most obviously and Easter Sunrise Service. A
playground might be just the place for that, or for an "old time religion" tent
revival.
******************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK S7N 5A6
CANADA
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania
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________________________________
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits
I’m not sure how upgrading the playground will make it
materially more usable as space for worship and religious instruction. Few
institutions, I expect, want to do worship and religious instruction on
playgrounds, rather than more familiar places. But those that do probably
don’t care about rubber vs. gravel surfaces when using a space for worship and
religious instruction, which rarely involves tumbling and running around.
Indeed, the improved surface is important for everyday playground physical
safety, and not really important for the very rare worship/religious
instruction on the playground.
And a building that’s more earthquake safe, or that has asbestos removed, or
that has a security guard, or lacks dangerous mosquitoes outside, actually is
slightly more attractive as space for worship and religious instruction: Some
people might be more willing to send their kids to a school or a church that’s
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a
church or school that seems dangerous. The effect won’t be vast, but again
it’s not like the extra benefit of a rubberized surface for worship and
religious instruction is vast, either.
Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free
church or religious school building surely will be used for religious purposes,
right? One can imagine a religious school or preschool that doesn’t use its
playground for religious purposes – indeed, I’d think that’s quite common – but
a church or a school definitely would use the safer buildings for religious
purposes. Chip, under your proposal, wouldn’t a state therefore be equally
free to say that “play in the joints” lets it deny all those safety grants
(otherwise generally available to all other institutions) to religious
institutions?
Eugene
Chip writes:
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Excluding religious institutions from public safety benefits
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....
On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto: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
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--
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<mailto:Religionlaw@lists.ucla.edu>
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read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
_______________________________________________
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