RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Laycock, H Douglas (hdl5c)]

Advocate Health Care does not present the question Mr. Peabody raises, or at 
least not squarely. The religious hospitals there do not seek exemption under 
some general guarantee of religious liberty; they seek to enforce a specific 
exemption that Congress enacted. The case is about statutory interpretation, 
and I expect the Court to treat it as such whichever way it decides.

The pipermail link in Chris Lund's post has citations to further academic 
discussion of the basic point. The interpretation of neutrality most consistent 
with liberty for all is neutral incentives, neither encouraging nor 
discouraging religion. That sometimes aligns with neutral categories, and 
sometimes requires exceptions.

Mr. Peabody's second post asks whether the church forfeits its free exercise 
rights when it accepts government funds. That is a question of unconstitutional 
conditions. The government's funding may increase the weight of its interest 
and tip the balance against exemptions in close cases. But the government 
should not generally be able to buy up constitutional rights with its general 
welfare spending.  And there is no connection between a safer playground 
surface and requiring a church to host a religious ceremony that violates its 
core teachings about marriage or any other religious matter.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Thursday, April 20, 2017 11:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Thank you. It is helpful and yet I see an ultimate collision between the 
dischordant rights to both be free from discrimination and also to discriminate.

I suppose what I'm looking for is what happens when a church is able to get 
funding from the state for a project but then relies on free exercise to 
discriminate against a protected class in how that state-funded project is used.

For instance, let's say that Trinity Lutheran gets it's playground and the 
state has a non-discrimination requirement.  Trinity normally uses the property 
but occasionally rents it out ay a nominal cost for events. An same-sex couple 
wants to get married there (obviously this particular example isn't perfect and 
I don't know what the church  thinks  about  same-sex marriage)  and the church 
declines the request citing religious reasons.

In this scenario, Trinity would have achieved access to state-funded 
infrastructure by prevailing in a claim of anti-religious discrimination by the 
state, but then would claim that it could in turn discriminate in the use of 
this same infrastructure against LGBTQ persons. And if the state tried to 
enforce a non-discrimination policy, the church would claim the protection of 
church-state separation and defend its right to discriminate. So suddenly the 
already limited state resources are further hampered by virtue of the fact that 
the church is religious.

So this circles around to the question - can a church that intends to use state 
funding in a discriminatory manner really present itself on an equal footing 
with secular non-profits when applying for state grants, or does the religious 
institution's discriminatory bent need to be taken into account when a state is 
dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
> wrote:
I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people insist that religious groups 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Michael Peabody]

Thank you. It is helpful and yet I see an ultimate collision between the
dischordant rights to both be free from discrimination and also to
discriminate.

I suppose what I'm looking for is what happens when a church is able to get
funding from the state for a project but then relies on free exercise to
discriminate against a protected class in how that state-funded project is
used.

For instance, let's say that Trinity Lutheran gets it's playground and the
state has a non-discrimination requirement.  Trinity normally uses the
property but occasionally rents it out ay a nominal cost for events. An
same-sex couple wants to get married there (obviously this particular
example isn't perfect and I don't know what the church  thinks  about
 same-sex marriage)  and the church declines the request citing religious
reasons.

In this scenario, Trinity would have achieved access to state-funded
infrastructure by prevailing in a claim of anti-religious discrimination by
the state, but then would claim that it could in turn discriminate in the
use of this same infrastructure against LGBTQ persons. And if the state
tried to enforce a non-discrimination policy, the church would claim the
protection of church-state separation and defend its right to discriminate.
So suddenly the already limited state resources are further hampered by
virtue of the fact that the church is religious.

So this circles around to the question - can a church that intends to use
state funding in a discriminatory manner really present itself on an equal
footing with secular non-profits when applying for state grants, or does
the religious institution's discriminatory bent need to be taken into
account when a state is dispensing limited state grants funds?

Michael Peabody, Esq
President,
Founders First Freedom
Foundersfirstfreedom.org

On Apr 20, 2017 5:51 PM, "Christopher Lund"  wrote:

> I don’t think there’s anything necessarily inconsistent with the two
> positions you describe.  Religion might be entitled to special treatment in
> some cases, but equal treatment in others.  (Doesn’t everyone, at some
> level, believe that?)  Certainly the Court does.  The Court has, for
> example, said that ministers must be accorded special (not equal) treatment
> in some constitutional contexts (like their ability to bring
> employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that
> ministers must be accorded equal (not special) treatment in other
> constitutional cntexts (like their ability to sit in the constitutional
> convention—see McDaniel v. Paty).  And the Court was unanimous both times!
>
>
>
> For the classic reconciliation of the pro-exemption position and the
> equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and
> Substantial Neutrality, available here, http://via.library.depaul.edu/
> cgi/viewcontent.cgi?article=2059=law-review.  Or just read this,
> http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.
> I’d add my own thoughts, but I’m running out of time.
>
>
>
> Also, by the way, you could have just as easily framed your point the
> other way:  Why do people insist that religious groups are not entitled to
> special exemptions because of some dominant equality principle, but then
> yet insist that religious groups cannot even be treated equally when it
> comes to funding?
>
>
>
> (And I should say that I think both of those framings—both yours and
> mine—are misleading and ultimately too harsh on the people who hold those
> views.)
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Michael Peabody
> *Sent:* Thursday, April 20, 2017 8:06 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> This term the Supreme Court is hearing two cases involving whether or not
> churches should be treated the same as other non-profit organizations, and
> I want to make sure I have this straight.
>
>
>
> First, in *Advocate Health Care Network v. Stapleton*, heard March 27,
> religious hospitals are claiming that they should be treated differently
> from other non-profit organizations when it comes to whether they need to
> comply with ERISA regulations that require them to adequately fund employee
> pension plans. If I understand it correctly, their central argument is that
> they are so closely affiliated with churches that their plans are,
> effectively, "established and maintained ... by a church."
>
>
>
> In the hospital ERISA 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Christopher Lund]

I don’t think there’s anything necessarily inconsistent with the two positions 
you describe.  Religion might be entitled to special treatment in some cases, 
but equal treatment in others.  (Doesn’t everyone, at some level, believe 
that?)  Certainly the Court does.  The Court has, for example, said that 
ministers must be accorded special (not equal) treatment in some constitutional 
contexts (like their ability to bring employment-discrimination claims—see 
Hosanna-Tabor v. EEOC), but that ministers must be accorded equal (not special) 
treatment in other constitutional cntexts (like their ability to sit in the 
constitutional convention—see McDaniel v. Paty).  And the Court was unanimous 
both times!

For the classic reconciliation of the pro-exemption position and the 
equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and 
Substantial Neutrality, available here, 
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=2059=law-review.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html.  I’d add 
my own thoughts, but I’m running out of time.

Also, by the way, you could have just as easily framed your point the other 
way:  Why do people insist that religious groups are not entitled to special 
exemptions because of some dominant equality principle, but then yet insist 
that religious groups cannot even be treated equally when it comes to funding?

(And I should say that I think both of those framings—both yours and mine—are 
misleading and ultimately too harsh on the people who hold those views.)

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Thursday, April 20, 2017 8:06 PM
To: Law & Religion issues for Law Academics 
Subject: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

This term the Supreme Court is hearing two cases involving whether or not 
churches should be treated the same as other non-profit organizations, and I 
want to make sure I have this straight.

First, in Advocate Health Care Network v. Stapleton, heard March 27, religious 
hospitals are claiming that they should be treated differently from other 
non-profit organizations when it comes to whether they need to comply with 
ERISA regulations that require them to adequately fund employee pension plans. 
If I understand it correctly, their central argument is that they are so 
closely affiliated with churches that their plans are, effectively, 
"established and maintained ... by a church."

In the hospital ERISA cases, religious institutions are demanding special 
treatment BECAUSE they are religious.

Now, in Trinity Lutheran Church v. Pauley, heard April 19, a church is claiming 
that they should NOT be treated differently from other non-profit organizations 
when it comes to whether or not they can participate in a state program that 
provides funding for playground resurfacing material when doing so would 
violate the state constitution.

In the Trinity Lutheran case and as indicated by amici, religious institutions 
are demanding that they be treated THE SAME as secular non-profit organizations.

So do churches want to be treated in a discriminatory manner or not? It seems 
that if regulations could impose some kind of financial responsibility on them, 
church-state separation applies. Yet, if they can get some infrastructure 
upgrade benefit, churches want to fully participate with no such separation.

But what will happen if the state, in return, imposes non-discrimination 
provisions on the churches for the use of the state-funded infrastructure? 
Would they still be treated the same as other non-profits and be required to 
open their facilities to all, or will they then be able to assert the 
protection of church-state separation?


Michael Peabody, Esq.
President,
Founders First Freedom
foundersfirstfreedom.org


___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Michael Peabody]

This term the Supreme Court is hearing two cases involving whether or not
churches should be treated the same as other non-profit organizations, and
I want to make sure I have this straight.

First, in *Advocate Health Care Network v. Stapleton*, heard March 27,
religious hospitals are claiming that they should be treated differently
from other non-profit organizations when it comes to whether they need to
comply with ERISA regulations that require them to adequately fund employee
pension plans. If I understand it correctly, their central argument is that
they are so closely affiliated with churches that their plans are,
effectively, "established and maintained ... by a church."

In the hospital ERISA cases, religious institutions are demanding special
treatment BECAUSE they are religious.

Now, in *Trinity Lutheran Church v. Pauley*, heard April 19, a church is
claiming that they should NOT be treated differently from other non-profit
organizations when it comes to whether or not they can participate in a
state program that provides funding for playground resurfacing material
when doing so would violate the state constitution.

In the Trinity Lutheran case and as indicated by amici, religious
institutions are demanding that they be treated THE SAME as secular
non-profit organizations.

So do churches want to be treated in a discriminatory manner or not? It
seems that if regulations could impose some kind of financial
responsibility on them, church-state separation applies. Yet, if they can
get some infrastructure upgrade benefit, churches want to fully participate
with no such separation.

But what will happen if the state, in return, imposes non-discrimination
provisions on the churches for the use of the state-funded infrastructure?
Would they still be treated the same as other non-profits and be required
to open their facilities to all, or will they then be able to assert the
protection of church-state separation?


Michael Peabody, Esq.
President,
Founders First Freedom
foundersfirstfreedom.org
___
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.