Please allow me to qualify that: The principal issue in *TLC* is whether the basic "no *direct funding *to churches" rule found in approximately half of states' constitutions -- a rule that was, indeed, a bedrock requirement of the Court's *Establishment Clause *doctrine until very recently (and perhaps it still is, at least as a matter of precedent) -- is now unconstitutional.
On Thu, May 5, 2016 at 1:20 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > I don't think I understand Mark's questions about weddings and generally > applicable conditions on tax benefits, none of which are raised by *Trinity > Lutheran*. The principal issue here is whether the basic "no aid to > churches" rule found in approximately half of states' constitutions -- a > rule that was, indeed, a bedrock requirement of the Court's *Establishment > Clause *doctrine until very recently (and perhaps it still is, at least > as a matter of precedent) -- is now unconstitutional. > > On Thu, May 5, 2016 at 1:14 PM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > >> I suppose there's a baseline question here, along with an >> unconstitutional conditions issue and probably other issues. Could a >> synagogue be required to allow a wedding to be held on its property between >> a Jew and a non-Jew, as a condition of receiving protection of its property >> by a fire department? (I realize that not all synagogues would oppose such >> a mixed marriage.) Or of receiving a building permit on an equal basis with >> other organizations (absent RLUIPA)? Freedom of religion (along with other >> freedoms) means little if the ordinary benefits of our society can be >> denied to a person or group because of the exercise of that freedom. The >> Bob Jones case is either an outlier or an example of a benefit (tax >> treatment as a charity) that is not an ordinary benefit. >> >> We were all assured that the same-sex marriage issue could never be the >> basis for application of Bob Jones. That assurance seems, in Nixonian >> terms, to have become inoperative. >> >> Of course a person or group that receives benefits from a government >> ordinarily does not as a result become a state actor for equal protection >> purposes; I assume no one is arguing to the contrary, absent a government >> function or symbiosis concern. >> >> Mark >> >> Mark S. Scarberry >> Pepperdine University School of Law >> >> Sent from my iPad >> >> On May 5, 2016, at 9:33 AM, Marty Lederman <lederman.ma...@gmail.com> >> wrote: >> >> As I understood Michael's observation, it was that the topside briefs in >> *Trinity >> Lutheran* argue at great length that churches, as such, can virtually >> never be disfavored vis-a-vis similarly situated secular institutions, >> under both the Free Exercise and Equal Protection Clauses -- whereas the >> writers of those briefs would, of course, strongly argue that a legislature >> generally can, and sometimes must, treat churches *more favorably* than >> such secular institutions. His fear, as I understood it (but perhaps I >> misunderstood him), was that the emphasis on formal equality in the briefs >> might prompt the Court to settle upon a holding closer to strict formal >> equality than it has ever previously announced -- which could be damaging >> to claims for permissive accommodations (akin to the fears raised by the >> "HHS can't favor churches" argument of the petitioners in *Zubik*). >> >> On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene <vol...@law.ucla.edu> >> wrote: >> >>> Hasn't that ship sailed already? We know from Bob Jones that >>> religious universities are subject to loss of their charitable tax >>> exemption if they discriminate, and that the government indeed can and does >>> use the threat of withdrawing funds as a means for changing church policy. >>> Maybe in some super-pure world whether religious institutions didn't even >>> get tax exemptions, they could resist such restrictions. But even there, >>> of course, the government would have broad power to impose restrictions, >>> just in its capacity as sovereign and even without funding; recall, for >>> instance, the New Jersey wedding venue case, where a church-owned venue was >>> held subject to antidiscrimination law even without any funding hook. >>> >>> Surrendering any Free Exercise Clause claims to equal treatment >>> in funding, as a means of trying to strengthen their claims to autonomy, >>> would be a poor choice for churches, I think. Those who want to impose >>> antidiscrimination laws on churches and church-owned organizations >>> generally aren't terribly interested in giving churches such autonomy, >>> whether or not churches get equal access to generally available benefits. >>> >>> Eugene >>> >>> > -----Original Message----- >>> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>> > boun...@lists.ucla.edu] On Behalf Of Michael Peabody >>> > Sent: Thursday, May 05, 2016 8:47 AM >>> > To: Law & Religion issues for Law Academics < >>> religionlaw@lists.ucla.edu> >>> > Subject: Trinity Lutheran Church - will churches have to extend "equal >>> > protection" to all when it comes to use? >>> > >>> > In reading the briefs on the Trinity Lutheran Church case, I see a lot >>> of reference >>> > to churches being denied "equal protection" when state laws >>> specifically prohibit >>> > them from participating in otherwise neutral state aid programs that >>> are >>> > available to other civic institutions. Yet churches often vigorously >>> argue that >>> > they are exempt from "equal protection" when it comes to access to >>> their >>> > facilities. >>> > >>> > But in turn, let's say that Trinity wins the case - does that mean >>> that churches >>> > that receive the funding could be subject to discrimination claims >>> brought by >>> > citizens who are prohibited from accessing the infrastructure, or are >>> > discriminated against while on the infrastructure, because the church >>> teaches >>> > against their protected class (i.e. religion, gender, sexual >>> orientation, etc.)? >>> > >>> > I'm thinking that churches that argue for equal protection when it >>> comes to >>> > compelling state funding of their institutions, and claim that they >>> should be on >>> > an equal footing when it comes to similar secular civic organizations, >>> should >>> > recognize that civic organizations are also held to a higher standard >>> when it >>> > comes to discrimination claims. >>> > >>> > Churches that receive funding and simultaneously seek to reserve the >>> right to >>> > discriminate should expect that they will be held to the same >>> non-discrimination >>> > standards as other civic organizations as a condition of receiving >>> such funding >>> > and that they will need to take "equal protection" into account when >>> it comes to >>> > people and other organizations which seek to access and use churches' >>> state- >>> > funded infrastructure. >>> > >>> > Put simply, could Trinity Lutheran Church be a Trojan Horse? >>> > >>> > I would be interested in your thoughts. >>> > >>> > Michael Peabody, Esq. >>> > ReligiousLiberty.TV >>> > _______________________________________________ >>> > To post, send message to Religionlaw@lists.ucla.edu To subscribe, >>> unsubscribe, >>> > change options, or get password, see http://lists.ucla.edu/cgi- >>> > bin/mailman/listinfo/religionlaw >>> > >>> > Please note that messages sent to this large list cannot be viewed as >>> private. >>> > Anyone can subscribe to the list and read messages that are posted; >>> people can >>> > read the Web archives; and list members can (rightly or wrongly) >>> forward the >>> > messages to others. >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
