Here’s how I understand the state of play with regard to
discrimination in favor of and against religious institutions and beliefs.
1. When it comes to government spending, the Court has already
generally taken the view that religious institutions can’t get special
benefits. See Texas Monthly v. Bullock and the implications of the old funding
cases, even as modified by Mitchell and Zelman. The question in Trinity
Lutheran is where we should move more towards equal treatment – no special
money for religious institutions, but no special exclusion from generally
available money (subject to Locke) – or have a rule in which discrimination in
favor of religious institutions in funding is forbidden, but discrimination
against them is allowed.
2. When it comes to direct regulation, the law is already
pretty clear. The government may not discriminate against religious practices
and institutions, see Lukumi; I don’t think anyone is challenging that in
Trinity. But the government may (in some instances) exempt only religious
practices and institutions, see Yoder; Frazee; Cutter, and in a few situations
must exempt religious practices and institutions, even if it doesn’t exempt
similar secular ones, see Hosanna-Tabor and what remains of Yoder and Frazee.
I’m not sure this is right; perhaps the rule should be mandatory equal
treatment when it comes to regulation and exemption, as Harlan argued in Welsh
and as Stevens argued in Boerne. But the rule we have is pretty well settled.
It may be theoretically possible that this clear state of the
law in item 2 will somehow be undermined by equal treatment for religious
institutions in item 1. But I don’t see that as especially likely – and I thus
don’t see why it makes sense for religious institutions to give up the
opportunity for equal treatment with regard to funding, on the hope that
somehow this will preserve favorable treatment with regard to exemptions.
Eugene
From: [email protected]
[mailto:[email protected]] On Behalf Of Marty Lederman
Sent: Thursday, May 05, 2016 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal
protection" to all when it comes to use?
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
<[email protected]<mailto:[email protected]>> 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:
> [email protected]<mailto:[email protected]>
> [mailto:religionlaw-<mailto:religionlaw->
> [email protected]<mailto:[email protected]>] On Behalf Of Michael
> Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics
> <[email protected]<mailto:[email protected]>>
> 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
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