An equal treatment theory also does not fit the "ministerial exception"
constitutionally mandated in Hosanna-Tabor Lutheran Church v. EEOC. I wonder
if Eugene, and others who question the Trinity Lutheran Church outcome, think
that unanimous decision is incorrect.
Sent from my iPhone
> On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu> wrote:
>
> To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit
> legislative exemptions available to religion but not non-religion, or just
> legislative burdens placed on religion but not non-religion? If only the
> latter, is it really a maximalist equal treatment theory? If both the former
> and the latter, is it remotely reconcilable with either current doctrine or
> longstanding tradition allowing legislative accommodation of religion? See
> Cutter ("Religious accommodations ... need not 'come packaged with benefits
> to secular entities'").
>
> - Jim
>
>> On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
>> I share Sandy’s skepticism about the “play in the joints”
>> locution, but I wonder why equal treatment doesn’t make sense as a
>> maximalist theory?
>>
>>
>>
>> Consider Sandy’s auditoria hypothetical. It’s hard to infer
>> much based on it, I think, because it’s hard to imagine the government
>> actually building auditoria for private organizations. But let’s consider
>> two more plausible versions:
>>
>>
>>
>> 1. The government builds a city auditorium, not for its own speech but
>> to enable private organizations to speak. Churches would indeed have a
>> First Amendment right to equal access to such an auditorium. See
>> Rosenberger v. Rector.
>>
>>
>>
>> 2. The government offers property tax exemptions for a wide range of
>> nonprofits, and makes contributions to such nonprofits tax-deductible.
>> Thus, if a nonprofit is building an auditorium, it in effect gets a massive
>> matching-grant subsidy from the government. There’s nothing nonsensical, it
>> seems to me, about churches being entitled to use this subsidy for building
>> their churches. Indeed, they get such a subsidy now, and it’s seen as
>> constitutional. See Walz. And I think that, if some government decided to
>> exclude churches from such subsidies (while making them available to a vast
>> range of comparable nonprofits), that would indeed violate the Free Exercise
>> Clause.
>>
>>
>>
>> Now one can argue that, as a matter of history, police, or what have you,
>> the Free Exercise Clause should not be read as mandating equal treatment for
>> religious observers in general, as to funding, as to some kinds of funding,
>> or what have you. But I just don’t see why the equal access rule wouldn’t
>> “make[] sense.”
>>
>>
>>
>> Eugene
>>
>>
>>
>> From: religionlaw-boun...@lists.ucla.edu
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
>> Sent: Sunday, January 17, 2016 9:58 AM
>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>> Subject: Re: The Establishment Clause question in the Trinity Lutheran case
>>
>>
>>
>> Shouldn't we admit that "play in the joints" is simply a euphemism for
>> judicial balancing between the competing notions of no establishment, on the
>> one hand, and free exercise+equality on the other. Neither makes sense as
>> maximalist theory. The former would prohibit police protection, the latter
>> would require the state to build churches if it auditoria for the people to
>> use as gathering places to discuss important issues. So we rely on
>> Rehnquist's and his successors' hunches as to where one should draw the
>> line. We delude ourselves in believing that legal doctrine can work itself
>> pure in this--or, for that matter, any other significant--area. "The life of
>> the law is experience, not logic."
>>
>>
>>
>> The problem is that it is awkward for well-paid law professors to teach
>> their students that law often comes down to the idiosyncratic views of the
>> median justices and that it is basically foolish to believe there are true
>> doctrinal rationales that can predict future decisions.
>>
>>
>>
>> Sandy
>>
>> Sent from my iPhone
>>
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