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

[Michael Peabody]

As to the "secular function" argument, is it truly a secular function?
Churches would claim that secular functions are not religious functions but
at the same time are also saying, "We are doing something that secular
organizations also do, but we are going to limit access in ways that
secular non-profits by law cannot."   I don't know that such a position is
tenable given the gestalt of the post-Obergefell age.

Further, many religious elementary schools as a rule do not generally
distinguish between secular and religious portions but try to provide a
wholistic spiritual atmosphere in all aspects of their activities and
properties.  Having said this, I do believe the Court will avoid trying to
figure out how secular or religious the use is, but rather take the
organization's word that is is "secular."

And doesn't the "secular" designation invite secular regulation?

If the law required defibrillators and the state gave grants to secular
institutions but denied them to religious schools that would be an entirely
different matter. After all, a defibrillator has a clear purpose and can't
be used for anything else. But here there is no such mandate for a rubber
playground and a playground can be used for many things.

On a personal note, I am a strong supporter of parochial education​. I send
both of my kids to religious schools at considerable expense. But I am
concerned with the trending winnowing away of the religious character of
these institutions if they begin to accept state funds and the state
imposes hiring, curriculum, and other regulations that impinge on this
character in order to protect the taxpayers' secular investment.

Ultimately, I do anticipate that the Court, if it reaches the merits, will
find in favor of Trinity Lutheran and accept the school's word that the
playground will be used for secular purposes.

Given the bakery and photographer cases, and threats to require facilities
to be open to all comers, I think a follow-up round of litigation on usage
will be unavoidable and given the results of the existing wedding services
cases involving small businesses, it would seem that churches ought to be
wary of what is lurking on the horizon if Trinity wins.

Thank you for the very informative and thoughtful points and discussion.

Michael Peabody, Esq.
President,
Founders First Freedom

On Apr 21, 2017 8:13 PM, "Laycock, H Douglas (hdl5c)" 
wrote:

> The funding question resolved in the founding generation was special
> allocation of public funds, not part of any broader program or category, to
> support the core religious functions of churches -- the salaries of clergy
> mostly, but also sometimes the construction of churches, or the income from
> glebe lands, which could be used for any purpose the church chose. That
> kind of expenditure was and is unconstitutional; there is no modern dispute
> about that.
>
>
>
> In that environment,  the principle of no discrimination in favor of or
> against religion was entirely consistent with the principle of no funding
> for religion. There were no programs of funding broad categories of private
> activities.
>
>
>
> Today's issue is nondiscriminatory funding of secular functions carried
> out by religious organizations in religious contexts. Now the principles of
> no discrimination and no funding squarely conflict, and we have to choose
> between them. And the founding generation did not make that choice.
>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546 <(434)%20243-8546>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [religionlaw-bounces@lists.
> ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
> *Sent:* Friday, April 21, 2017 4:52 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
> I have been struck this week by how almost all of the pro-state discussion
> of Trinity Lutheran has focused on the problem of discrimination by state
> funded churches (i.e., why should taxpayers fund activities from which some
> are invidiously excluded?).  It's as if we (academics as well as informed
> journalists) have all forgotten the origins and justifications of
> no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
> of such rules, is certainly not concerned with discrimination by recipient
> churches.  It is, rather, focused on other policies that justify separation
> in funding matters -- religious voluntarism (not forcing taxpayers to
> subsidize faiths with which they disagree or agree); the danger of church
> dependence on the state; mutual corruption of church and state that
> financial relationships might produce, etc.. As John Ely wisely wrote, the
> Establishment Clause is a separation of powers provision, and the same is
> true for the state constsitutions' 

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

[Laycock, H Douglas (hdl5c)]

The funding question resolved in the founding generation was special allocation 
of public funds, not part of any broader program or category, to support the 
core religious functions of churches -- the salaries of clergy mostly, but also 
sometimes the construction of churches, or the income from glebe lands, which 
could be used for any purpose the church chose. That kind of expenditure was 
and is unconstitutional; there is no modern dispute about that.



In that environment,  the principle of no discrimination in favor of or against 
religion was entirely consistent with the principle of no funding for religion. 
There were no programs of funding broad categories of private activities.



Today's issue is nondiscriminatory funding of secular functions carried out by 
religious organizations in religious contexts. Now the principles of no 
discrimination and no funding squarely conflict, and we have to choose between 
them. And the founding generation did not make that choice.



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 Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, April 21, 2017 4:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.


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

[Mark Scarberry]

One question is what to do when governments at all levels control more and more 
resource allocations (far more I think than Madison could have expected). 
Programs that target religious institutions for particular affirmative benefits 
still should be highly suspect. Programs that deny equal access to resources 
impose more and more of a burden as governments grow.

Some "benefits" may appropriately be seen as attempts to respect separate space 
for religious organizations and for religious obligations.

Mark

Mark S. Scarberry
Pepperdine University School of Law

From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Friday, April 21, 2017 2:51:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or 

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

[Volokh, Eugene]

Are we indeed sure that the “Madisonian understanding of 
church-state separation” indeed prohibits funding in the context of generally 
available funding programs?  The Memorial and Remonstrance, after all, was 
written in response to a program that was specifically targeted towards 
benefiting the clergy; and much of the language in the Memorial and 
Remonstrance focuses on the law taking cognizance of religion, violating 
equality principles, and support of “establishment.”

Now I realize that there might not be enough data points on 
this for us to speak with confidence, given that the government of the era 
might not have used such programs much.  But the post seems to be quite 
confident that the original understanding applied without regard to whether any 
funding was targeted to religious institutions or religious uses.  I’m 
wondering whether we should indeed have such confidence.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, April 21, 2017 1:53 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.
___
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.

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

[Eric J Segall]

Well said Chip, and if there was a true originalist on the Court, there isn't, 
they'd know the only true original meaning of Article III that we are sure 
about is there must be two adverse parties. In this case, there aren't.

Best,

Eric

Sent from my iPhone

On Apr 21, 2017, at 5:24 PM, Ira Lupu 
> wrote:

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.

On Fri, Apr 21, 2017 at 2:30 PM, Alan E Brownstein 
> wrote:

I think the question Michael poses is more complicated than his posts suggest 
in important respects, but I also think the dischordant rights argument he 
presents has substantial force.


From an analytic perspective, because religion implicates not only liberty 
values but group and identity values, and speech values, I think there are 
cases where religion may need to be treated differently than non-religion and 
situations where it should be treated the same as non-religion. But equality 
and speech consequences present powerful counterweights to the idea that 
religious institutions should as a general matter receive special exemptions 
from general laws because of their distinctive nature while at the same time be 
eligible for government grants and largess on the same terms as their secular 
counterparts.


From a policy perspective, I might rephrase Michael's question this way (my 
apologies Michael if my rephrasing does not capture your meaning), If a 
pre-school operated by an adjacent church should be conceptualized as religious 
for the purpose of evaluating claims that 1. unlike its secular counterparts, 
it should be permitted to discriminate on the basis of religious belief and 
conduct in hiring staff -- including playground monitors; 2. unlike its secular 
counterparts it should be permitted to discriminate on the basis of religious 
belief and conduct in admitting students -- even if most of what the students 
do is to play on the playground; 3. unlike its secular counterparts it should 
be provided additional discretion in designing its curriculum, and 4. unlike 
its secular counterparts, it should be 

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

[Ira Lupu]

I have been struck this week by how almost all of the pro-state discussion
of Trinity Lutheran has focused on the problem of discrimination by state
funded churches (i.e., why should taxpayers fund activities from which some
are invidiously excluded?).  It's as if we (academics as well as informed
journalists) have all forgotten the origins and justifications of
no-funding rules.  Madison's Memorial & Remonstrance, the classic defense
of such rules, is certainly not concerned with discrimination by recipient
churches.  It is, rather, focused on other policies that justify separation
in funding matters -- religious voluntarism (not forcing taxpayers to
subsidize faiths with which they disagree or agree); the danger of church
dependence on the state; mutual corruption of church and state that
financial relationships might produce, etc.. As John Ely wisely wrote, the
Establishment Clause is a separation of powers provision, and the same is
true for the state constsitutions' no-funding provisions, including
Missouri's.
Of course, times have changed, and the state now provides many more forms
of largesse, including funds for safe playground surfaces. So we can argue
about whether it is wise to relax state-based no funding rules (the 1st A
rules have already been relaxed to some extent), or whether it is fair to
exclude churches from some forms of largesse. (No one is excluding them
from police and fire protection).  My point here is that the Madisonian
understanding of church-state separation, and the no-funding rules that
followed, has been largely lost.  Maybe that's because the fight, so
prominent from the mid-19th century until relatively late in the 20th
century, about funding Catholic schools has long been over. Maybe our
collective forgetfulness about the Madisonian narrative is also about the
expanded welfare state, where religious communities play a huge partnership
role.  Maybe we now have full confidence in religious pluralism and the
unlikelihood of sectarian discrimination by the state, though the
continuing experience of Muslims and Native Americans in the U.S. should be
a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even
Justices Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday
of maintaining continuity with that tradition.  When the no-funding
tradition is reduced to a formal rule -- the state cannot write a check to
the church -- it will soon disappear in the face of countervailing legal
and political pressure.
And I must add that the idea that the Free Exercise Clause, as *an original
matter*, entitles houses of worship to equal treatment in state funding
arrangements seems spectacularly unpersuasive.  So let's see what our new
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity
Lutheran.

On Fri, Apr 21, 2017 at 2:30 PM, Alan E Brownstein  wrote:

> I think the question Michael poses is more complicated than his posts
> suggest in important respects, but I also think the dischordant rights
> argument he presents has substantial force.
>
>
> From an analytic perspective, because religion implicates not only liberty
> values but group and identity values, and speech values, I think there are
> cases where religion may need to be treated differently than non-religion
> and situations where it should be treated the same as non-religion. But
> equality and speech consequences present powerful counterweights to the
> idea that religious institutions should as a general matter receive special
> exemptions from general laws because of their distinctive nature while at
> the same time be eligible for government grants and largess on the same
> terms as their secular counterparts.
>
>
> From a policy perspective, I might rephrase Michael's question this way
> (my apologies Michael if my rephrasing does not capture your meaning), If a
> pre-school operated by an adjacent church should be conceptualized as
> religious for the purpose of evaluating claims that 1. unlike its secular
> counterparts, it should be permitted to discriminate on the basis of
> religious belief and conduct in hiring staff -- including playground
> monitors; 2. unlike its secular counterparts it should be permitted to
> discriminate on the basis of religious belief and conduct in admitting
> students -- even if most of what the students do is to play on the
> playground; 3. unlike its secular counterparts it should be provided
> additional discretion in designing its curriculum, and 4. unlike its
> secular counterparts, it should be protected against certain burdensome
> land use regulations -- then why shouldn't the pre-school be conceptualized
> as religious for the purpose of determining its eligibility to receive
> government funds.
>
>
> Finally, from a political and rhetorical perspective, based solely on
> anecdotal evidence (but that includes a lot of talks to a lot of lay
> audiences and various advocates and 

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

[Alan E Brownstein]

I think the question Michael poses is more complicated than his posts suggest 
in important respects, but I also think the dischordant rights argument he 
presents has substantial force.


>From an analytic perspective, because religion implicates not only liberty 
>values but group and identity values, and speech values, I think there are 
>cases where religion may need to be treated differently than non-religion and 
>situations where it should be treated the same as non-religion. But equality 
>and speech consequences present powerful counterweights to the idea that 
>religious institutions should as a general matter receive special exemptions 
>from general laws because of their distinctive nature while at the same time 
>be eligible for government grants and largess on the same terms as their 
>secular counterparts.


>From a policy perspective, I might rephrase Michael's question this way (my 
>apologies Michael if my rephrasing does not capture your meaning), If a 
>pre-school operated by an adjacent church should be conceptualized as 
>religious for the purpose of evaluating claims that 1. unlike its secular 
>counterparts, it should be permitted to discriminate on the basis of religious 
>belief and conduct in hiring staff -- including playground monitors; 2. unlike 
>its secular counterparts it should be permitted to discriminate on the basis 
>of religious belief and conduct in admitting students -- even if most of what 
>the students do is to play on the playground; 3. unlike its secular 
>counterparts it should be provided additional discretion in designing its 
>curriculum, and 4. unlike its secular counterparts, it should be protected 
>against certain burdensome land use regulations -- then why shouldn't the 
>pre-school be conceptualized as religious for the purpose of determining its 
>eligibility to receive government funds.


Finally, from a political and rhetorical perspective, based solely on anecdotal 
evidence (but that includes a lot of talks to a lot of lay audiences and 
various advocates and advocacy groups for a lot of years) I suggest:


Few arguments have been as effective in my discussions with progressive or 
secular audiences in arguing for distinctive treatment (e.g. accommodations) 
for religious individuals and institutions as the argument that the 
distinctiveness of religion is recognized and taken into account for 
establishment clause purposes and concerns in limiting government funding of 
religion.


The unwillingness of progressive or secular groups to accept accommodations and 
exemptions for religious institutions increases exponentially when the 
religious institution receives government funds -- and the rejection of 
accommodations reaches its zenith when the government funds support the very 
activities for which an accommodation is sought. An argument for religious 
institutional autonomy including exclusionary decisions that resonates with 
progressive and secular audiences is the idea that religious institutions are 
using private funds donated to them for the furtherance of sacred purposes and 
accordingly, they should be able to limit the use of those funds to only those 
activities and individuals that reflect that mission. That argument is not only 
unpersuasive, it is counterproductive, when public funds are at issue.


At its harshest, the argument is expressed that religion will be characterized 
as sufficiently distinct from non-religion to require different treatment or 
sufficiently similar to non-religion to require similar treatment based solely 
on whichever characterization produces a favorably outcome for religion. When 
the characterization of religion is thought to be manipulated gamesmanship, 
support for religious liberty is diminished.


At least this has been my experience.


Alan






From: religionlaw-boun...@lists.ucla.edu  
on behalf of Michael Peabody 
Sent: Thursday, April 20, 2017 8:47:24 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