Re: Cert Granted in Blaine Amendment case

[Marty Lederman]

I concur with most of what Chip says, especially his important point that
the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
about the permissibility of diversion of the aid to religious activities
(although of course the majority might choose to take the opportunity to do
so).

But this case is importantly different from *Mitchell* in two ways:  it
involves (i) provision of direct *money *grants (ii) to churches, as such.
It thus implicates SOC's insistence that there are "special dangers
associated with direct money grants to religious institutions," which she
thought has traditionally been "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*."  Of course,
she never did explain just what she meant by that, although presumably she
was referring to some sort of entanglement concern about the establishment
of financial relationships between (literally) church and state.

Whatever O'Connor meant, I'd be very surprised if there are five (or
perhaps even three or four) current Justices who agree with SOC that there
are special problems with aid to churches, as such, or who think that
financial aid is constitutionally different from other sorts of aid, in a
way that establishes a *categorical *constitutional disability--especially
where, as here, the money is provided *only *as direct dollar-for-dollar
reimbursement "for the purchase, vendor installation and delivery of the
playground scrap tire surface material."

All of which is to say that *Committee for Public Educ. v. Regan *might get
a good deal of attention here.

On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu  wrote:

> 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
>> 

Re: The funding criteria in Trinity Lutheran

[Marty Lederman]

"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."

FWIW, and as many of you know, I'm one who thinks it matters a great deal
(see pp.22-25 of http://balkin.blogspot.com/olc.charitablechoice.pdf); and
that, at least from the looks of the document to which Eugene linked, this
is as strong a case as can be imagined on the "permissible" side of the
line, since there appears to be virtually no room for government assessment
of the relative value, or merits, of the institutions applying for the
grants, or of the substance of what happens within them--the criteria
appear to be entirely neutral and objective.  I hope the Court stresses
this aspect of the program.

On Fri, Jan 15, 2016 at 7:49 PM, Volokh, Eugene  wrote:

>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!
>
> ___
> 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.
>
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Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I appreciate Micah's clarifying the thrust of my point.


It may be that the idea of play in the joints is better understood and 
conceptualized when one considers the way the state approaches its relationship 
with religious institutions from a broad perspective. Thus, the special 
treatment a state provides religious institutions by protecting them against 
government regulations far more than the Constitution requires is relevant to 
the question of whether the state also may limit subsidies to religious 
institutions more than the Constitution requires. While individual laws and 
subsidy decisions  are evaluated separately that evaluation may properly 
reflect the broader framework of church-state relations adopted by the state on 
which the law or subsidy decision is based.


As to Chips suggestion that the accommodations I describe would violate the 
Establishment Clause, his point is well taken in that in my haste I failed to 
include a requirement that the accommodations in question apply to regulations 
that substantially burden the religious exercise of religious institutions.


Let me add that important foundation to the accommodations I packaged together 
earlier.


Here, a law protecting religious land uses from general land use regulations 
that substantially burden the religious exercise of religious institutions 
paraphrases RLUIPA and provides religious institutions significant protection 
against land use regulations which is unavailable to secular institutions.


A law protecting religious institutions against any government regulation that 
substantially burdens its religious exercise unless the regulation is 
determined to be the least restrictive means of furthering a compelling state 
interest paraphrases RFRA. Again, this protection is unavailable to secular 
institutions.


Religious institutions are already protected from several generally applicable 
anti-discrimination laws. Some of this protection is constitutionally required 
as in Hosanna Tabor. It is not clear to me that a state statute defining a 
ministerial exception beyond what the Constitution has been held to require is 
a per se violation of the Establishment Clause -- although I very much 
appreciate the argument that at some point such a law would be an Establishment 
Clause violation. And, of course, Title VII exempts religious organizations to 
some extent from the prohibition against discrimination in hiring on the basis 
of religion. Further, I recognize that the ongoing debate about exempting 
religious organizations from laws protecting members of the LGBT community and 
same-sex couples against discrimination implicates Establishment Clause 
concerns. But it is not clear to me that any and all such exemptions violate 
the Establishment Clause. Accordingly, I think it is plausible to include in my 
package laws that immunize religious institutions from many (but certainly not 
all) generally applicable anti-discrimination laws.


But again, my primary point does not relate to any one of these particular 
accommodations. It is that the fact that a state provides a substantial number 
of religious accommodations to religious institutions -- which non-religious 
persons and institutions often consider to be unjustified privileges -- may be 
relevant to the way we evaluate the play in the joints when the same state 
limits subsidies available to religious institutions.


Alan




From: Alan E Brownstein
Sent: Saturday, January 16, 2016 6:55 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits



>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 

RE: Excluding religious institutions from public safety benefits

[Friedman, Howard M.]

Note that the federal government is already making grants to houses of worship 
under the Department of Homeland Security's Nonprofit Security Grants program 
to strengthen security safeguards at nonprofit institutions that are 
particularly likely to be the targets of terror attacks. Apparently funded at 
$20 million in latest budget bill. In the past, a number of synagogues have 
received grants.

More broadly, does anyone think that with 6 Catholic justices on the Court 
there is a possibility that the Court might use the Trinity Lutheran case to 
find state Blaine Amendments unconstitutional because of the anti-Catholic 
sentiment that originally motivated their passage in many states?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, January 16, 2016 6:25 PM
To: Law & Religion issues for Law Academics
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] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
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 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

>From Micah Schwartzman (who is having trouble connecting to the List).


 I take the larger point from Alan's examples to be that the state in his 
hypothetical gives religious organizations special treatment by providing them 
with exemptions and by excluding them from certain legal benefits. There is a 
kind of symmetry in this form of separationism: religion is both specially 
favored and specially disabled. When you isolate the question of exclusion from 
public benefits (as the facts in Trinity Lutheran invite us to do), it looks 
like there is some unfairness by the state. Religious organizations are being 
singled out for special (unfavorable) treatment. But when you zoom out, that 
special treatment is part of a larger pattern in which religious organizations 
are treated differently from secular organizations in many different ways. And 
now the claim of unfairness or inequality seems harder to substantiate.
>
> I agree with Chip that the individual items in Alan's list (and in Eugene's) 
> have to be evaluated separately, but Alan's framing is helpful in pressing 
> the question about why religion is entitled to special treatment in some of 
> these contexts but not in others.




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Ira Lupu 
Sent: Saturday, January 16, 2016 12:13 PM
To: Law & Religion issues for Law Academics
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.

2.  Alan's massive package of church-state separation policies -- each one has 
to be evaluated retail.  And, for starters, the regulatory immunities he 
suggests -- e.g., Need not comply with 1) many land use regulations that 
secular institutions must obey;  2) any government regulation unless the 
regulation was determined to be the least restrictive means of furthering a 
compelling state interest; and 3) many generally applicable anti-discrimination 
laws -- cannot possibly be justified under the Establishment Clause.  They all 
prefer religious entities over analogous secular entities (e.g., a secular 
pre-school or day care center) without any demonstration that the immunity is 
necessary to, or even related to, freeing the religious entity from 
restrictions on its ability to carry out its religious mission.

Bottom line -- direct financial aid has to be disconnected from religious 
mission.  Accommodations have to remove distinctively religious burdens, and 
therefore permit the  private accomplishment of religious mission (not just 
make it cheaper to carry out; if that is all that is happening, that would be 
impermissible aid), as well as not inflict significant harm on third parties, 
which some of Alan's proposed immunities would do.  These are all Establishment 
Clause principles reflected in the current law, are they not?

On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
> wrote:
   Two quick question for list members about Trinity 

Re: The Establishment Clause question in the Trinity Lutheran case

[Scarberry, Mark]

For those of us who haven't been following the case closely yet:

Why wouldn't this best be described as a grant of scrap rubber rather than as a 
grant of funds/money? Should that characterization matter?

Mark

Mark S. Scarberry
Pepperdine University School of Law

P.S. Condolences to Green Bay fans.

Sent from my iPad

On Jan 16, 2016, at 8:17 PM, Marty Lederman 
> wrote:

I just took a quick look at the briefs and decision below.  Unless I missed 
something, it appears that neither Missouri nor amici ACLU and Americans United 
argued that the funding would violate the federal Establishment Clause.  This 
led the court of appeals to write:  "We . . . recognize that the Supreme 
Court’s Establishment Clause jurisprudence has evolved rather dramatically in 
the forty years since Luetkemeyer was decided. For example, it now seems rather 
clear that Missouri could include the Learning Center’s playground in a 
non-discriminatory Scrap Tire grant program without violating the Establishment 
Clause."  [No explanation of why that is "rather clear."  In fact, insofar as 
governing doctrine is concerned, it's at best a close question under the EC.]

Given that Missouri appears committed to arguing for Locke v. Davey-like "play 
in the joints," it's unlikely the state will argue, in the Supreme Court, that 
funding would violate the EC.  And without the state making that argument, the 
Court will almost certainly not raise the matter itself, even though under 
governing doctrine there's a very strong argument that the funding would be 
unconstitutional.  In which case we'll have what's arguably a major doctrinal 
change without the issue even being joined.

I don't want to overstate the importance of this:  Even if the issue were fully 
briefed, there are almost certainly five or more Justices who would reject the 
notion that funding here would violate the EC.  Still, it would be rather 
remarkable if the Court were to hold, for the first time in history(?), that 
the state can make direct grants to churches, in a case where no party has even 
argued to the contrary.



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Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

I wonder if I might offer a modest (well maybe not so modest) amendment to 
Eugene's excellent hypotheticals.


Say that the government adopted a package bill. It provided that:


A. Houses of worship and directly affiliated schools and day care centers:


Need not comply with many land use regulations that secular institutions must 
obey.


Need not comply with any government regulation unless the regulation was 
determined to be the least restrictive means of furthering a compelling state 
interest


Need not comply with many generally applicable anti-discrimination laws (the 
extent of this immunity would be spelled out in the regulatory package)


Were protected against tort liability relating to professional negligence and 
emotional distress causes of action


Would receive favorable tax treatment with regard to the housing of clergy


B. Further, Houses of worship and directly affiliated schools and day care 
centers would not be eligible for cash grants offered generally to private 
institutions (even grants providing reimbursements for expenses). However, they 
would be entitled to receive government services generally provided to private 
institutions by public employees including guards to protect against gang 
violence and the spraying of grounds to eradicate mosquitos carrying dangerous 
virus.


A preamble to the package would explain that the legislature was trying to 
further some of the goals of the separation of church and state by limiting 
both governmental interference with religious institutions and government 
subsidizing of religious institutions.


Would this legislation be constitutional?


Alan





From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Saturday, January 16, 2016 9:02 AM
To: Law & Religion issues for Law Academics
Subject: Excluding religious institutions from public safety benefits


   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
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Re: Excluding religious institutions from public safety benefits

[Ira Lupu]

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.

2.  Alan's massive package of church-state separation policies -- each one
has to be evaluated retail.  And, for starters, the regulatory immunities
he suggests -- e.g., Need not comply with 1) many land use regulations that
secular institutions must obey;  2) any government regulation unless the
regulation was determined to be the least restrictive means of furthering a
compelling state interest; and 3) many generally applicable
anti-discrimination laws -- cannot possibly be justified under the
Establishment Clause.  They all prefer religious entities over analogous
secular entities (e.g., a secular pre-school or day care center) without
any demonstration that the immunity is necessary to, or even related to,
freeing the religious entity from restrictions on its ability to carry out
its religious mission.

Bottom line -- direct financial aid has to be disconnected from religious
mission.  Accommodations have to remove distinctively religious burdens,
and therefore permit the  private accomplishment of religious mission (not
just make it cheaper to carry out; if that is all that is happening, that
would be impermissible aid), as well as not inflict significant harm on
third parties, which some of Alan's proposed immunities would do.  These
are all Establishment Clause principles reflected in the current law, are
they not?

On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene 
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
>
> ___
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RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   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] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
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 
> 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 

Re: Excluding religious institutions from public safety benefits

[Ira Lupu]

Eugene, I suspect there are 5 votes to uphold all four of your health and 
safety examples as not prohibited by the First Amendment. Likewise a grant for 
playground surfaces.  But I also see that your cases can be seen as close, for 
reasons you suggest, so perhaps a state could justify excluding religious 
institutions from any of those programs under a state constitutional provision 
like that in Missouri. Locke involved a voucher type program, clearly allowable 
under the Establishment Clause. Play in the joints is all about the scope of 
state discretion to separate its funds from religious uses more then the 
federal Constitution requires.

Howard, Trinity Lutheran Church did not challenge the Missouri constitutional 
provision on its face, so I do not believe the anti-Catholic animus theory is 
open for adjudication in the Supreme Court.

Sent from my iPhone

> On Jan 16, 2016, at 6:42 PM, Friedman, Howard M. 
>  wrote:
> 
> Note that the federal government is already making grants to houses of 
> worship under the Department of Homeland Security's Nonprofit Security Grants 
> program to strengthen security safeguards at nonprofit institutions that are 
> particularly likely to be the targets of terror attacks. Apparently funded at 
> $20 million in latest budget bill. In the past, a number of synagogues have 
> received grants.
> 
> More broadly, does anyone think that with 6 Catholic justices on the Court 
> there is a possibility that the Court might use the Trinity Lutheran case to 
> find state Blaine Amendments unconstitutional because of the anti-Catholic 
> sentiment that originally motivated their passage in many states?
> 
> Howard Friedman
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Saturday, January 16, 2016 6:25 PM
> To: Law & Religion issues for Law Academics
> 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] On Behalf Of Ira Lupu
> Sent: Saturday, January 16, 2016 12:14 PM
> To: Law & Religion issues for Law Academics 
> 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, 

The Establishment Clause question in the Trinity Lutheran case

[Marty Lederman]

I just took a quick look at the briefs and decision below.  Unless I missed
something, it appears that neither Missouri nor amici ACLU and Americans
United argued that the funding would violate the federal Establishment
Clause.  This led the court of appeals to write:  "We . . . recognize that
the Supreme Court’s Establishment Clause jurisprudence has evolved rather
dramatically in the forty years since Luetkemeyer was decided. For example, *it
now seems rather clear that Missouri could include the Learning Center’s
playground in a non-discriminatory Scrap Tire grant program **without
violating the Establishment Clause*."  [No explanation of why that is
"rather clear."  In fact, insofar as governing doctrine is concerned, it's
at best a close question under the EC.]

Given that Missouri appears committed to arguing for Locke v. Davey-like
"play in the joints," it's unlikely the state will argue, in the Supreme
Court, that funding would violate the EC.  And without the state making
that argument, the Court will almost certainly not raise the matter
itself, *even
though under governing doctrine there's a very strong argument that the
funding would be unconstitutional*.  In which case we'll have what's
arguably a major doctrinal change without the issue even being joined.

I don't want to overstate the importance of this:  Even if the issue were
fully briefed, there are almost certainly five or more Justices who would
reject the notion that funding here would violate the EC.  Still, it would
be rather remarkable if the Court were to hold, for the first time in
history(?), that the state can make direct grants to churches, in a case
where no party has even argued to the contrary.




On Sat, Jan 16, 2016 at 7:16 AM, Marty Lederman 
wrote:

> I concur with most of what Chip says, especially his important point that
> the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
> about the permissibility of diversion of the aid to religious activities
> (although of course the majority might choose to take the opportunity to do
> so).
>
> But this case is importantly different from *Mitchell* in two ways:  it
> involves (i) provision of direct *money *grants (ii) to churches, as
> such.  It thus implicates SOC's insistence that there are "special
> dangers associated with direct money grants to religious institutions,"
> which she thought has traditionally been "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*."  Of course, she never did explain just what she meant by
> that, although presumably she was referring to some sort of entanglement
> concern about the establishment of financial relationships between
> (literally) church and state.
>
> Whatever O'Connor meant, I'd be very surprised if there are five (or
> perhaps even three or four) current Justices who agree with SOC that there
> are special problems with aid to churches, as such, or who think that
> financial aid is constitutionally different from other sorts of aid, in a
> way that establishes a *categorical *constitutional
> disability--especially where, as here, the money is provided *only *as
> direct dollar-for-dollar reimbursement "for the purchase, vendor
> installation and delivery of the playground scrap tire surface material."
>
> All of which is to say that *Committee for Public Educ. v. Regan *might
> get a good deal of attention here.
>
> On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu  wrote:
>
>> 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 

Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   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
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