Pauland I have had a cordial exchange off-list that cleared up any
misunderstandingon our part. As we all know, emails canbe misunderstood.
Inorder to dispel any ambiguity created by my short response let me simply
saythe following. I think discerningoriginal intent regarding the religious
liberty clauses is very difficult inall but a few areas for reasons Paul has
stated with great insight. I can’t recall the places off-hand but have in mind
at least his review of a book on the subject byJack Rakove. I think Jackson’s
famousline about the dreams of Joseph applies here with even more force here
(again inall but a few areas). Sandy has madethat point since I wrote. So a
lot ofMadison (and I’ve read a good bit too) is…a lot of Madison. I myself see
no clear original intent orprecedential practice that is dispositive as to
these sorts of programs forreasons that the voluminous literature in the area
elaborates in great detail. For my part, I tend to think of the
questionpresented here as akin to that addressed in Everson, which framed the
issue alongthe lines of Eugene’s queries and I’m not surprised that this
discussion hasalready moved in that direction. So faras I’m concerned the
holding in Everson points to the proper outcome here—call itplay in the joints
or sensible balancing of provisions that as currentlyunderstood are in tension.
Regards to all, PatPatrick T. Gillen, JD, PhDAssociate Professor of LawAve
Maria School of Law1025 Commons CircleNaples, FL 34119
On Sunday, January 17, 2016 6:39 PM, "Finkelman, Paul"
<paul.finkel...@albanylaw.edu> wrote:
#yiv9212927685 #yiv9212927685 -- P
{margin-top:0;margin-bottom:0;}#yiv9212927685 I am not sure what part of my
posting bothered Mr. Gillen (Prof? He does not tell us who he is) so much,
whether it was my attempt a little humor (to channel Madison) or my rather long
and hardly facile attempt to distinguish between tax exemptions for churches
and tax money going to churches. My reading of Madison (and I have read a LOT
of Madison) is that he had no problem with tax exemption for churches precisely
because he was not anti-religion (nor am I) and realized that taxing churches
could destroy them. He had seen massive persecution in Va. of Baptists,
Quakers, and other dissenters, and knew that if the political leaders could tax
churches it was reasonable to expect economic persecution. For the same
reasons he opposed the anti-Catholic and anti-Semitic tests for office holding
in the contemporary state constitutions.
There were no such things as tax deduction or tax exemptions or deductions for
charitable giving in Madison's time, so we can only guess that he would likely
have approved of allowing for deductions for charitable giving (if there were
such a tax system) and accepted that churches are charitable institutions. But
again, this is only an assumption. And perhaps I am wrong and he would have
seen such deductions as impermissible government support for religious
institutions. Certainly that is a reasonable argument. Given the complexity
of our world, however, it is hard to imagine treating a religious charity in a
different way than a secular charity (for example, allowing a tax deduction for
a donation to George Washington University but not to Georgetown University).
What we do know is that Madison emphatically opposed the government giving
money, land, goods, or anything else of value to churches and believed that not
a penny (and that is his language) of taxpayer money should be handed over to
churches.
That would include scrap rubber. On this I stand with our 4th president, and I
hope Mr. Gillen does not think this is facile.
I realize there are complications here and I tried to address some of them in
my previous post. But I have said enough on this for the moment.
*************************************************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights LawCollege of LawUniversity
of Saskatchewan15 Campus DriveSaskatoon, SK S7N 5A6Canadac)
518.605.0296paul.finkelman@albanylaw.edupaul.finkelman@yahoo.comand
Senior FellowPenn Program on Democracy, Citizenship, and
ConstitutionalismUniversity of
Pennsylvania*************************************************
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Patrick Gillen <pgille...@yahoo.com>
Sent: Sunday, January 17, 2016 5:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits I
don't have time to engage in a sustained discussion but feel compelled to
confess that I am astonished to see such a facile (and highly debatable) claim
for original understanding to be offered by someone who has written
insightfully about the difficulty of making claims for such. Regards to all,
Pat
Sent from my iPhone. Please excuse any errors or informality.
On Jan 17, 2016, at 4:52 PM, Finkelman, Paul <paul.finkel...@albanylaw.edu>
wrote:
As someone (I think) who still believes in originalism, you should try to
channel Madison for a full answer.
The real issue is when you transfer money to churches you (I use this as a
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the
gov. is directly endorsing religion and establishing it. Furthermore, if cash
changes hand, the Gov. must be required to audit the churches and that
threatens religious liberty and free exercise. To use the asbestos case -- can
use tax dollars for abatement of a wall that has a religious message -- text,
crucifix, art work? I think now.
However, I think a partial answer would be the following:
1: the government provides all sorts of "external" services to all people in
society, police, fire, roads, sewers, trash pick up, snow removal, etc.
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams,
Kingdom Halls, etc). get these like everyone else.
2: Not for profit entities get all sorts of tax breaks, and religious
institutions fit that bill. If the religious institutions are running
businesses to support their activities I would not give them the same tax
breaks for those businesses. So, if the church also owns an apartment complex,
and the profit from the apartments goes to support the church, I would think
the apartment complex as a business should pay real estate and other taxes just
like anyone else. And along the same line, religious buildings should pay use
taxes for water, sewers, etc.
3: assessing fair market value for a church is impossible and not taxing
religious buildings fits with other non-profits -- museums, schools, etc. (for
example to tax Trinity Church in lower Manhattan at fair market value would put
out of business -- the power to tax in this case would be the power to destroy,
to quote Marshall)
4: The government should not be in the business of rebuilding churches. It
the church has asbestos issues it needs to fix them. It the church school
can't fix it then the church school may have to close. Otherwise, we have tax
dollars fixing religious buildings, paying to replace religious symbols,
alters, etc. etc. That is not good for churches or the state.
5: I never suggested removing tax deductibility. It did not exist in
Madison's time, but he never suggested taxing churches. For tax purposes,
churches are like other non-profits. Any alternative, would put them out of
business.
6: Security guards pose an interesting question. Most private businesses pay
for their own "internal" security but the police can guard a building. Have a
police car parked out front; but have private security inside of private
institutions. It is not a hard concept. My Temple in Tulsa did it every
Friday night. My Temple in Albany did not. Either way, it was private. Some
churches provide their own security from members.
*************************************************
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights LawCollege of LawUniversity
of Saskatchewan15 Campus DriveSaskatoon, SK S7N 5A6Canadac)
518.605.0296paul.finkelman@albanylaw.edupaul.finkelman@yahoo.comand
Senior FellowPenn Program on Democracy, Citizenship, and
ConstitutionalismUniversity of
Pennsylvania*************************************************
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 4:28 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits
So if there is a gang violence problem at schools, and the government
gives grants to schools with the most serious problems to hire a security
guard, the government may – indeed, it sounds like “must” – refuse to do the
same for religious schools? What about tax deductibility of
contributions, and the property tax exemption, which the Court has long
recognized (Texas Monthly v. Bullock, Taxation With Representation v. Regan,
Bob Jones Unv. v. United States) as involving a form of subsidy? May (and
must) the government refuse to extend these benefits, available to a vast range
of secular nonprofits, to religious institutions? What about
in-kind benefits, such as free or subsidized sewer access, trash pickup, fire
protection, or police protection? May (and must) the government refuse to
provide equal access to such things to churches and religious schools?
If it is really objectionable to take one penny of a citizen’s money to
support any church or religioneven through an evenhanded benefit program, then
wouldn’t the government have to exclude religion from all these benefits?
Conversely, if the government can offer such benefits, it seems to me that this
is because the prohibition is on taking money to support religion because of
its religiosity, rather than to offer religious people and institutions equal
access to broadly available benefits. Eugene From: Finkelman,
Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene <vol...@law.ucla.edu>; Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits
Doesnt it depend on how much resurfacing was needed. But is that the issue.
If the giv money is supporting and enhancing sectarian worship, does it matter
how much. As Madison noted in his remonstrance, it isd objectionable to take
one penny of a citizens money to support any church or religion. Do you really
want to start analyzing "how much" you can spend of ny tax dollars to supporrt
your church? Sent from my T-Mobile 4G LTE device ------ Original
message------From:Volokh, EugeneDate:Sun, Jan 17, 2016 2:17 PMTo:Law & Religion
issues for Law Academics;Cc:Subject:RE: Excluding religious institutions from
public safety benefits Got it, thanks. How much more effective are
those religious activities (as opposed to secular play activities) on a
resurfaced playground as opposed to a non-resurfaced playground?
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> 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
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> ________________________________
> 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
>
> _______________________________________________
> To post, send message to
> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as private.
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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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>
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>
> _______________________________________________
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> change options, or get password, see http://lists.ucla.edu/cgi-
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>
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