I'm not about to suggest that Eugene's equal access arguments don't make sense.
But I don't think his examples provide persuasive support for an equal access
rule either.
Example 1 is a designated public forum. As such, it is subject to equal access
rules. But it is certainly not clear to me either for free speech purposes or
religion clause purposes that the doctrinal rules applying to public forums
apply to all government spending programs. I don't think there is any consensus
as to how spending decisions that distinguish between religion and
non-religious grantees or that draw a variety of other distinctions that might
be characterized as content or viewpoint based should be reviewed. Rosenberger
is a forum case and the extent to which it extends beyond a designated public
forum remains unclear. Certainly there is abundant argument from both
conservative and liberal jurists that challenge its extension to other spending
settings.
Example 2 has more bite to it. But again, I think the question remains whether
the generally accepted rule for tax-deductible contributions is to be extended
to other subsidy programs such as those involving cash grants or anywhere else.
If we consider the range of regulations and subsidies that might apply to the
building of auditoriums by nonprofits, it seems clear that our constitutional
traditions suggest a significant reluctance to allow government to directly
subsidize churches (which are in effect auditoriums for religious assembly,
expression and association) and a corresponding willingness to exempt churches
from regulations applicable to secular institutions (certainly RLUIPA, for
example, involves regulatory discrimination in favor of churches). These
traditions, I suggest, reflect some of the competing values represented by the
two religion clauses. The problem, of course, is that these values can be
extremely difficult to reconcile. It seems to me that the inclusion of houses
of worship in the class of nonprofits that benefit from tax deductible
donations is best understood as one of the arbitrary lines that we have drawn
to accommodate both free exercise and establishment clause concerns. It is a
policy compromise that is formally inconsistent with a ban that singles out and
denies religious subsidies per se and also inconsistent with a generally
permissive regime that allows for singling and accepting exemptions for
religious institutions and activities from generally applicable laws. We can
argue whether it is a good compromise or a bad compromise. But I don't think it
supports extending an equality regime more generally to subsidies or religious
exemptions for religious institutions.
Alan
________________________________
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 1:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: The Establishment Clause question in the Trinity Lutheran case
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
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