I am juggling multiple deadlines and will not be responding to responses to this post or participating in a continuing debate. But the principle of neutral government incentives can largely reconcile recognizing the church’s right to funds in cases like Trinity Lutheran with its right to regulatory exemptions for religious practice.
First, the issue in the founders’ time was whether government could or should provide special funding – funding not available to secular activities – for the religious activities of churches. The answer was no, and that remains settled. None of the current disputes involve that question. The modern question is whether government can provide neutral funding on nondiscriminatory criteria for secular services – education in secular subjects, health care, social services of various kinds – delivered in a religious environment by a religious institution. Money has the same value to everyone, so the only way to maintain religiously neutral incentives, with government neither encouraging nor discouraging individuals or organizations to become more or less religious, is to fund everybody or nobody – or to choose on objective and religiously neutral criteria. I agree with Marty that subjective criteria open the door to discrimination. If government says it will fund secular services in a religious environment but not a secular environment, or vice versa, it powerfully encourages providers to qualify for the funding by making themselves more or less religious as government demands. Organizations that are fully committed one way or the other cannot switch and will suffer the resulting discrimination. But organizations near the line can make themselves more or less religious in order to qualify, and we see examples of this in the reported cases. The same analysis applies to tax exemption for religious and secular non-profits. The same analysis applies to regulatory exemptions when religious practice aligns with secular self interest. If a religious objection to tax on secular income – salaries, investment income, etc. – entitled the objector to a tax exemption, the anti-tax religion would draw millions of real or feigned adherents. But that is not the typical exemption case. Most religious practices are meaningless apart from the religious belief that gives them meaning, and many are personally burdensome from a secular perspective. Unlike money, the exemption does not have the same value for everyone. Making a religious practice illegal, threatening practitioners with jail, fines, or loss of civil benefits, powerfully discourages that religious practice. But exempting the religious practice from regulation generally does not encourage others to adopt it. If I have no desire to practice someone else’s religion, that fact that an exemption means I could do so without penalty does not create any desire to practice that other person’s religion. Of course there are line drawing issues around each of these points, but they are broadly applicable. Penalizing religion discourages it; exempting it from regulation generally does not encourage it. Funding secular providers but not religious providers discourages religion; funding them equally generally does not encourage it. This also helps explain why religious and secular private speech should receive equal treatment, and why government speech should not take positions on religious questions, either promoting or attacking religious answers to those questions. Government silence is as close to neutral as we can come. I first set out these propositions in Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 349-52 (1996). I elaborate them more discursively in Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51 (2007). And as Texas lawyers are still prone to saying at the end of affidavits: Further deponent sayeth not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, January 18, 2016 9:23 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Excluding religious institutions from public safety benefits Mark, this is certainly true, and important: "The Remonstrance was written at a time when states did not provide extensive benefits to most people or at least was not omnipresence in all aspects of their lives. Not a penny shall go to a church is a lot harder to figure out when lots of government pennies go to lots of different things." And that's why almost everyone -- including on this list -- would not have much trouble with religious organizations receiving entitlements that are available to everyone, with police and fire protection being the canonical example. The difficulties, however, are (at least) twofold: 1. Virtually all of these cases, including Trinity Lutheran, involve not entitlements, but instead scarce (often competitive) resources, such as selective grants. In most such cases (but apparently not LT), government decision-makers must make subjective judgments about which recipients are most worthy, which obviously raises constitutional concerns when churches are in the mix. And even where the criteria are wholly neutral and nondiscretionary, I think there's an uneasiness about the state conferring highly desirable, very selective benefits on religious institutions while others do without. In part because of . . . 2. Alan's point, which is that such institutions simultaneously insist--often for very compelling reasons--that they should not be made to share in the burdens of the welfare state, even when it comes to obligations in the commercial sphere, involving virtually universal obligations (see Zubik). Moreover, we're witnessing a flourishing of scholarship defending the notion of "separate" spheres and institutional autonomy--the right to opt out of the welfare state, as it were--but many of those same voices insist that the "autonomous" institutions are entitled to equal treatment on the benefits side, even with respect to scarce resources. This (all the benefits, less-than-all of the burdens) might well be very defensible; but it's certainly at least somewhat discordant, and thus cries out for thoughtful justification. On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark <mgra...@law.umaryland.edu<mailto:mgra...@law.umaryland.edu>> wrote: To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF, the problem is not simply the original intent per se, but the welfare state. The Remonstrance was written at a time when states did not provide extensive benefits to most people or at least was not omnipresence in all aspects of their lives. Not a penny shall go to a church is a lot harder to figure out when lots of governmet pennies go to lots of different things. ______________________
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