Cert Granted in Blaine Amendment case

[Friedman, Howard M.]

SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman
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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

On first glance, this has the potential to be a huge case.  Not only will
it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
whether *Locke* even survives the departure of Rehnquist and O'Connor) on
the Free Exercise side, but it also is the first SCOTUS case in 16 years --
since *Mitchell v. Helms *-- implicating whether and under what
circumstances a state can offer selective, discretionary "direct funding"
to a religious institution . . . indeed, to a church itself!

Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
"special dangers associated with direct money grants to religious
institutions," and the Court's "concern with direct monetary aid is based
on more than just diversion. In fact, the most important reason for
according special treatment to direct money grants is that this form of aid
falls precariously close to the original object of the Establishment
Clause's prohibition."

It'd be quite something if the Court moved from the current view that such
funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, the SOC
opinion in *Mitchell*) to the view that it's constitutionally required
(i.e., that the state can't discriminate against the church as recipient of
the direct aid); but in light of the composition of the current Court,
that's a very real possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would
mean no funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though
that's been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
> at
> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
>
>
> Howard Friedman
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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>
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The funding criteria in Trinity Lutheran

[Volokh, Eugene]

   People can debate to what extent this should matter, but I 
should note that the funding criteria in Trinity Lutheran seem to be pretty 
nondiscretionary as these things go, see http://dnr.mo.gov/pubs/pub2425.pdf .  
Of course, all systems can be enforced in discretionary ways (police protection 
and judicial enforcement of legal rules are classic examples); but these seem 
to leave relatively little wiggle room, especially for evaluation of religious 
or ideological doctrine.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 2:15 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert Granted in Blaine Amendment case

On first glance, this has the potential to be a huge case.  Not only will it 
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke 
even survives the departure of Rehnquist and O'Connor) on the Free Exercise 
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v. 
Helms -- implicating whether and under what circumstances a state can offer 
selective, discretionary "direct funding" to a religious institution . . . 
indeed, to a church itself!
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Re: Funds for madrasas

[Levinson, Sanford V]

I of course agree with Eugene and his examples. The real question I was asking 
was whether a lawyer should emphasize the implications of broadening state 
subsidies to religious institutions re funding Moslem schools and whether the 
judges, at least privately, will think of these implications in the present 
state of American politics.

Sandy

Sent from my iPhone

On Jan 15, 2016, at 6:46 PM, Volokh, Eugene 
> wrote:

   It seems to me that taxpayers routinely subsidize speech the 
majority disapproves of:

   1.  Saudi-funded madrasas, like other religious schools - and 
other nonprofits - get a subsidy through tax exemptions.  The same goes, of 
course, for educational nonprofits that distribute secular ideas that many 
people find repulsive.  If the government sought to exclude pernicious 
doctrines from these benefits, I take it that this would violate the First 
Amendment, yes?

   2.  Saudi-funded pernicious Wahabi materials get the same post 
office subsidies (media mail, the old second-class mailing rate) that any other 
media materials do.

   3.  Pernicious Wahabi speech can't be excluded from benefit 
programs such as the one in Rosenberger - and I take it that even the 
dissenters would have agreed that an exclusion of funding for pernicious 
viewpoints (as opposed to all religious viewpoints) would have violated the 
First Amendment.

   If a Wahabi school is getting pretty massive tax benefits 
(property tax exemptions, income tax deductibility of contributions), why 
should we balk at the Wahabi school getting funding to keep its - however 
perniciously taught - children from injuring themselves on gravel playgrounds?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, January 15, 2016 4:31 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Cert Granted in Blaine Amendment case

Why does the particular subsidy matter?  It obviously frees up funds that can 
be used for sectarian purposes.

Sandy ...

Sent from my iPhone


To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion "a" above, to point out that any such doctrine 
would require "sovereign states" to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I'm just asking, though, as 
with Trump, I'm confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy ...
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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

Just to be clear:  The grants are not to pay teachers "teach," or to
operate the school, as such, but instead to purchase used tires to be
melted down into playground surfaces.  The application here was for use at
a playground at the church, to be used by children in the church daycare
and preschool.  The State received 44 applications and had funding to pay
for 14 of them.

On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

> To what extent is it either required or ethically questionable to point
> out, if one is objecting to conclusion “a” above, to point out that any
> such doctrine would require “sovereign states” to pony money up to Moslem
> schools, including, say, madrasas funded by Saudi Arabia in order to teach
> various pernicious Wahabi doctrines?  As Donald Trump might put it, I’m
> just asking, though, as with Trump, I’m confident that a lot of Evangelical
> Christians who will not be happy with an argument that their tax dollars
> have to go to fund Islamic schools.
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Friday, January 15, 2016 4:15 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: Cert Granted in Blaine Amendment case
>
>
>
> On first glance, this has the potential to be a huge case.  Not only will
> it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
> whether *Locke* even survives the departure of Rehnquist and O'Connor) on
> the Free Exercise side, but it also is the first SCOTUS case in 16 years --
> since *Mitchell v. Helms *-- implicating whether and under what
> circumstances a state can offer selective, discretionary "direct funding"
> to a religious institution . . . indeed, to a church itself!
>
>
>
> Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
> "special dangers associated with direct money grants to religious
> institutions," and the Court's "concern with direct monetary aid is based
> on more than just diversion. In fact, the most important reason for
> according special treatment to direct money grants is that this form of aid
> falls precariously close to the original object of the Establishment
> Clause's prohibition."
>
>
>
> It'd be quite something if the Court moved from the current view that such
> funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, the SOC
> opinion in *Mitchell*) to the view that it's constitutionally required
> (i.e., that the state can't discriminate against the church as recipient of
> the direct aid); but in light of the composition of the current Court,
> that's a very real possibility.
>
>
>
> In theory, at least, all three dispositions are in play:
>
>
>
> i.  Missouri must fund the church
>
> ii.  Missouri can't fund the church
>
> iii. Missouri has discretion to go either way (which in this case would
> mean no funding, per the Missouri Constitution)
>
>
>
> If I had to guess, I'd say (ii) is the least likely outcome, even though
> that's been the governing law for many decades.
>
>
>
> On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
> howard.fried...@utoledo.edu> wrote:
>
> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
> at
> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html
>
>
>
>
> Howard Friedman
>
>
> ___
> 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
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>
> 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.
>
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RE: Funds for madrasas

[Volokh, Eugene]

   Wouldn't the Justices know all this?  And, especially given 
this, why would the Justices be that upset at the possibility that - of the 
money that goes to religious institutions - 1% would go to madrasa child care 
centers and 99% would go to seemingly nice church/synagogue/etc. child care 
centers?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, January 15, 2016 9:13 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Funds for madrasas

I of course agree with Eugene and his examples. The real question I was asking 
was whether a lawyer should emphasize the implications of broadening state 
subsidies to religious institutions re funding Moslem schools and whether the 
judges, at least privately, will think of these implications in the present 
state of American politics.

Sandy

Sent from my iPhone

On Jan 15, 2016, at 6:46 PM, Volokh, Eugene 
> wrote:
   It seems to me that taxpayers routinely subsidize speech the 
majority disapproves of:

   1.  Saudi-funded madrasas, like other religious schools - and 
other nonprofits - get a subsidy through tax exemptions.  The same goes, of 
course, for educational nonprofits that distribute secular ideas that many 
people find repulsive.  If the government sought to exclude pernicious 
doctrines from these benefits, I take it that this would violate the First 
Amendment, yes?

   2.  Saudi-funded pernicious Wahabi materials get the same post 
office subsidies (media mail, the old second-class mailing rate) that any other 
media materials do.

   3.  Pernicious Wahabi speech can't be excluded from benefit 
programs such as the one in Rosenberger - and I take it that even the 
dissenters would have agreed that an exclusion of funding for pernicious 
viewpoints (as opposed to all religious viewpoints) would have violated the 
First Amendment.

   If a Wahabi school is getting pretty massive tax benefits 
(property tax exemptions, income tax deductibility of contributions), why 
should we balk at the Wahabi school getting funding to keep its - however 
perniciously taught - children from injuring themselves on gravel playgrounds?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, January 15, 2016 4:31 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Cert Granted in Blaine Amendment case

Why does the particular subsidy matter?  It obviously frees up funds that can 
be used for sectarian purposes.

Sandy ...

Sent from my iPhone



To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion "a" above, to point out that any such doctrine 
would require "sovereign states" to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I'm just asking, though, as 
with Trump, I'm confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy ...
___
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Religionlaw@lists.ucla.edu
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RE: Cert Granted in Blaine Amendment case

[Levinson, Sanford V]

To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion “a” above, to point out that any such doctrine 
would require “sovereign states” to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I’m just asking, though, as 
with Trump, I’m confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 4:15 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert Granted in Blaine Amendment case

On first glance, this has the potential to be a huge case.  Not only will it 
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke 
even survives the departure of Rehnquist and O'Connor) on the Free Exercise 
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v. 
Helms -- implicating whether and under what circumstances a state can offer 
selective, discretionary "direct funding" to a religious institution . . . 
indeed, to a church itself!

Under O'Connor's controlling opinion in Mitchell, recall, there remain "special 
dangers associated with direct money grants to religious institutions," and the 
Court's "concern with direct monetary aid is based on more than just diversion. 
In fact, the most important reason for according special treatment to direct 
money grants is that this form of aid falls precariously close to the original 
object of the Establishment Clause's prohibition."

It'd be quite something if the Court moved from the current view that such 
funding is constitutionally prohibited (e.g., Tilton, Nyquist, the SOC opinion 
in Mitchell) to the view that it's constitutionally required (i.e., that the 
state can't discriminate against the church as recipient of the direct aid); 
but in light of the composition of the current Court, that's a very real 
possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would mean no 
funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though that's 
been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. 
> wrote:
SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman

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Re: Cert Granted in Blaine Amendment case

[Ira Lupu]

According to the 8th Circuit opinion,
http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf,
the Missouri Constitution (Article I, Section 7) specifically provides that
“no money shall ever be taken from the public treasury, directly or
indirectly, in aid of any church, section or denomination of religion.” The
opinion says the Church's application, under this program for playground
resurfacing funds, ranked 5th (and there was money for 14) but was denied
under that state constitutional provision.

The 8th Circuit rejected the federal constitutional claims (free exercise,
establishment clause, equal protection clause, free speech clause) on the
authority of Locke v. Davey, 2004 (WA state does not violate the free
exercise clause by refusing, for state constitutional reasons, to allow
state Promise Scholarship recipients to use the scholarships to study in
programs that train for religious ministry).  So the federal Establishment
Clause may not require Missouri to reject the Trinity Church application
(although the playground could indeed be used for worship and religious
instruction), but the question remains whether the state may have (as in
Locke) a broader funding restriction than the 1st A requires.
An important case, but one that could be decided quite narrowly
(distinguishing Locke as being about a precisely focused state interest in
not subsidizing training for ministry).

On Fri, Jan 15, 2016 at 6:19 PM, Marty Lederman 
wrote:

> Just to be clear:  The grants are not to pay teachers "teach," or to
> operate the school, as such, but instead to purchase used tires to be
> melted down into playground surfaces.  The application here was for use at
> a playground at the church, to be used by children in the church daycare
> and preschool.  The State received 44 applications and had funding to pay
> for 14 of them.
>
> On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
> slevin...@law.utexas.edu> wrote:
>
>> To what extent is it either required or ethically questionable to point
>> out, if one is objecting to conclusion “a” above, to point out that any
>> such doctrine would require “sovereign states” to pony money up to Moslem
>> schools, including, say, madrasas funded by Saudi Arabia in order to teach
>> various pernicious Wahabi doctrines?  As Donald Trump might put it, I’m
>> just asking, though, as with Trump, I’m confident that a lot of Evangelical
>> Christians who will not be happy with an argument that their tax dollars
>> have to go to fund Islamic schools.
>>
>>
>>
>> sandy
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>> *Sent:* Friday, January 15, 2016 4:15 PM
>> *To:* Law & Religion issues for Law Academics > >
>> *Subject:* Re: Cert Granted in Blaine Amendment case
>>
>>
>>
>> On first glance, this has the potential to be a huge case.  Not only will
>> it almost certainly test the limits of *Locke v. Davey* (and, perhaps,
>> whether *Locke* even survives the departure of Rehnquist and O'Connor)
>> on the Free Exercise side, but it also is the first SCOTUS case in 16 years
>> -- since *Mitchell v. Helms *-- implicating whether and under what
>> circumstances a state can offer selective, discretionary "direct funding"
>> to a religious institution . . . indeed, to a church itself!
>>
>>
>>
>> Under O'Connor's controlling opinion in *Mitchell*, recall, there remain
>> "special dangers associated with direct money grants to religious
>> institutions," and the Court's "concern with direct monetary aid is based
>> on more than just diversion. In fact, the most important reason for
>> according special treatment to direct money grants is that this form of aid
>> falls precariously close to the original object of the Establishment
>> Clause's prohibition."
>>
>>
>>
>> It'd be quite something if the Court moved from the current view that
>> such funding is constitutionally prohibited (e.g., *Tilton, Nyquist*,
>> the SOC opinion in *Mitchell*) to the view that it's constitutionally
>> required (i.e., that the state can't discriminate against the church as
>> recipient of the direct aid); but in light of the composition of the
>> current Court, that's a very real possibility.
>>
>>
>>
>> In theory, at least, all three dispositions are in play:
>>
>>
>>
>> i.  Missouri must fund the church
>>
>> ii.  Missouri can't fund the church
>>
>> iii. Missouri has discretion to go either way (which in this case would
>> mean no funding, per the Missouri Constitution)
>>
>>
>>
>> If I had to guess, I'd say (ii) is the least likely outcome, even though
>> that's been the governing law for many decades.
>>
>>
>>
>> On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. <
>> howard.fried...@utoledo.edu> wrote:
>>
>> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details
>> at
>> 

Re: Cert Granted in Blaine Amendment case

[Levinson, Sanford V]

Why does the particular subsidy matter?  It obviously frees up funds that can 
be used for sectarian purposes.

Sandy

Sent from my iPhone

On Jan 15, 2016, at 5:22 PM, Marty Lederman 
> wrote:

Just to be clear:  The grants are not to pay teachers "teach," or to operate 
the school, as such, but instead to purchase used tires to be melted down into 
playground surfaces.  The application here was for use at a playground at the 
church, to be used by children in the church daycare and preschool.  The State 
received 44 applications and had funding to pay for 14 of them.

On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V 
> wrote:
To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion “a” above, to point out that any such doctrine 
would require “sovereign states” to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I’m just asking, though, as 
with Trump, I’m confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 4:15 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Cert Granted in Blaine Amendment case

On first glance, this has the potential to be a huge case.  Not only will it 
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke 
even survives the departure of Rehnquist and O'Connor) on the Free Exercise 
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v. 
Helms -- implicating whether and under what circumstances a state can offer 
selective, discretionary "direct funding" to a religious institution . . . 
indeed, to a church itself!

Under O'Connor's controlling opinion in Mitchell, recall, there remain "special 
dangers associated with direct money grants to religious institutions," and the 
Court's "concern with direct monetary aid is based on more than just diversion. 
In fact, the most important reason for according special treatment to direct 
money grants is that this form of aid falls precariously close to the original 
object of the Establishment Clause's prohibition."

It'd be quite something if the Court moved from the current view that such 
funding is constitutionally prohibited (e.g., Tilton, Nyquist, the SOC opinion 
in Mitchell) to the view that it's constitutionally required (i.e., that the 
state can't discriminate against the church as recipient of the direct aid); 
but in light of the composition of the current Court, that's a very real 
possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would mean no 
funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though that's 
been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. 
> wrote:
SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman

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Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

"one that could be decided quite narrowly (distinguishing Locke as being
about a precisely focused state interest in not subsidizing training for
ministry)."

Yes, but in order to issue even that narrow holding, the Court would
necessarily be saying--wouldn't it?--that the Establishment Clause does not
prohibit direct funding to churches, at least where (i) the criteria for
funding are fairly rote and nondiscretionary (as Eugene suggests they are
here), and (ii) the principal uses of the $$ are not for activities that
involve "inherently religious" matters.  And that--a holding that the EC
does not categorically prohibit direct funding to churches--would be fairly
momentous, no?  (even if we've all been expecting it since SOC left the
Court)

On Fri, Jan 15, 2016 at 8:32 PM, Ira Lupu  wrote:

> According to the 8th Circuit opinion,
> http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf,
> the Missouri Constitution (Article I, Section 7) specifically provides
> that “no money shall ever be taken from the public treasury, directly or
> indirectly, in aid of any church, section or denomination of religion.” The
> opinion says the Church's application, under this program for playground
> resurfacing funds, ranked 5th (and there was money for 14) but was denied
> under that state constitutional provision.
>
> The 8th Circuit rejected the federal constitutional claims (free exercise,
> establishment clause, equal protection clause, free speech clause) on the
> authority of Locke v. Davey, 2004 (WA state does not violate the free
> exercise clause by refusing, for state constitutional reasons, to allow
> state Promise Scholarship recipients to use the scholarships to study in
> programs that train for religious ministry).  So the federal Establishment
> Clause may not require Missouri to reject the Trinity Church application
> (although the playground could indeed be used for worship and religious
> instruction), but the question remains whether the state may have (as in
> Locke) a broader funding restriction than the 1st A requires.
> An important case, but one that could be decided quite narrowly
> (distinguishing Locke as being about a precisely focused state interest in
> not subsidizing training for ministry).
>
> On Fri, Jan 15, 2016 at 6:19 PM, Marty Lederman 
> wrote:
>
>> Just to be clear:  The grants are not to pay teachers "teach," or to
>> operate the school, as such, but instead to purchase used tires to be
>> melted down into playground surfaces.  The application here was for use at
>> a playground at the church, to be used by children in the church daycare
>> and preschool.  The State received 44 applications and had funding to pay
>> for 14 of them.
>>
>> On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V <
>> slevin...@law.utexas.edu> wrote:
>>
>>> To what extent is it either required or ethically questionable to point
>>> out, if one is objecting to conclusion “a” above, to point out that any
>>> such doctrine would require “sovereign states” to pony money up to Moslem
>>> schools, including, say, madrasas funded by Saudi Arabia in order to teach
>>> various pernicious Wahabi doctrines?  As Donald Trump might put it, I’m
>>> just asking, though, as with Trump, I’m confident that a lot of Evangelical
>>> Christians who will not be happy with an argument that their tax dollars
>>> have to go to fund Islamic schools.
>>>
>>>
>>>
>>> sandy
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>>> *Sent:* Friday, January 15, 2016 4:15 PM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Cert Granted in Blaine Amendment case
>>>
>>>
>>>
>>> On first glance, this has the potential to be a huge case.  Not only
>>> will it almost certainly test the limits of *Locke v. Davey* (and,
>>> perhaps, whether *Locke* even survives the departure of Rehnquist and
>>> O'Connor) on the Free Exercise side, but it also is the first SCOTUS case
>>> in 16 years -- since *Mitchell v. Helms *-- implicating whether and
>>> under what circumstances a state can offer selective, discretionary "direct
>>> funding" to a religious institution . . . indeed, to a church itself!
>>>
>>>
>>>
>>> Under O'Connor's controlling opinion in *Mitchell*, recall, there
>>> remain "special dangers associated with direct money grants to religious
>>> institutions," and the Court's "concern with direct monetary aid is based
>>> on more than just diversion. In fact, the most important reason for
>>> according special treatment to direct money grants is that this form of aid
>>> falls precariously close to the original object of the Establishment
>>> Clause's prohibition."
>>>
>>>
>>>
>>> It'd be quite something if the Court moved from the current view that
>>> such funding is constitutionally prohibited (e.g., *Tilton, Nyquist*,
>>> the SOC 

Re: Cert Granted in Blaine Amendment case

[Ira Lupu]

Responding to Marty:  [If it reversed], the Court would NOT necessarily be
saying "that the Establishment Clause does not prohibit direct funding to
churches, at least where (i) the criteria for funding are fairly rote and
nondiscretionary (as Eugene suggests they are here), and (ii) the principal
uses of the $$ are not for activities that involve "inherently religious"
matters."  {Sorry for all those "nots.")  The State of Missouri did not
defend its denial of the application on federal Establishment Clause
grounds.  It defended on state constitutional law grounds, and it argued
that the state was free to have a broader ban on funding than the
Establishment Clause requires.  That argument is about the scope of the
"play in the joints' between the Religion Clauses.

Perhaps one cannot determine that scope without fixing the boundaries of
the Establishment Clause.  That would bring Marty's concerns into play.
Under current Establishment Clause law re: direct funding, however, the
SOC-SB concurrence in Mitchell v. Helms represents the controlling law.
Under that opinion, direct aid to religious entities must have adequate
safeguards against diversion to religious use.  There is absolutely no
reason for SCOTUS in this case to resolve the difference between that
concurring opinion and the Mitchell plurality, which rejected the demand
for safeguards against religious use. So if Missouri loses this case, and
makes the grant to Trinity Church, the grant would still have to include
safeguards against diversion -- that is, no use of the playground as an
outdoor classroom for religious instruction, or an outdoor venue for
worship services.   I wonder if Trinity Church would want the grant on
those conditions, and it might litigate further.  But a grant on those
conditions, unlike an outright denial, would certainly be within the play
in the joints, as they now stand.  SCOTUS would have to be quite aggressive
to rewrite the Establishment Clause rules in a case where the state has not
relied on those rules to defend its action.

Yes, it could happen, but it seems unlikely to me.   Locke v. Davey was 7-2
in favor of the state having discretion to refuse to fund a scholarship for
preparation in ministry, even if the Establishment Clause allowed it.
Scalia and Thomas would need three additional votes to narrow that
discretion, to squeeze it back to what the Establishment Clause forbids,
AND to adopt the Mitchell plurality view.  They have 5 for the last of
those, but I suspect not for the first two.

On Fri, Jan 15, 2016 at 9:34 PM, Marty Lederman 
wrote:

> "one that could be decided quite narrowly (distinguishing Locke as being
> about a precisely focused state interest in not subsidizing training for
> ministry)."
>
> Yes, but in order to issue even that narrow holding, the Court would
> necessarily be saying--wouldn't it?--that the Establishment Clause does not
> prohibit direct funding to churches, at least where (i) the criteria for
> funding are fairly rote and nondiscretionary (as Eugene suggests they are
> here), and (ii) the principal uses of the $$ are not for activities that
> involve "inherently religious" matters.  And that--a holding that the EC
> does not categorically prohibit direct funding to churches--would be fairly
> momentous, no?  (even if we've all been expecting it since SOC left the
> Court)
>
> On Fri, Jan 15, 2016 at 8:32 PM, Ira Lupu  wrote:
>
>> According to the 8th Circuit opinion,
>> http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf,
>> the Missouri Constitution (Article I, Section 7) specifically provides
>> that “no money shall ever be taken from the public treasury, directly or
>> indirectly, in aid of any church, section or denomination of religion.” The
>> opinion says the Church's application, under this program for playground
>> resurfacing funds, ranked 5th (and there was money for 14) but was denied
>> under that state constitutional provision.
>>
>> The 8th Circuit rejected the federal constitutional claims (free
>> exercise, establishment clause, equal protection clause, free speech
>> clause) on the authority of Locke v. Davey, 2004 (WA state does not violate
>> the free exercise clause by refusing, for state constitutional reasons, to
>> allow state Promise Scholarship recipients to use the scholarships to study
>> in programs that train for religious ministry).  So the federal
>> Establishment Clause may not require Missouri to reject the Trinity Church
>> application (although the playground could indeed be used for worship and
>> religious instruction), but the question remains whether the state may have
>> (as in Locke) a broader funding restriction than the 1st A requires.
>> An important case, but one that could be decided quite narrowly
>> (distinguishing Locke as being about a precisely focused state interest in
>> not subsidizing training for ministry).
>>
>> On Fri, Jan 15, 2016 at 6:19 PM, Marty