RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Scarberry, Mark]

I’m basically with Eugene on this matter. Note, however, that in the Oklahoma 
city example, as Eugene describes it, the government caused the damage, by 
putting bloody bodies on the church’s carpet and hammering tent pegs into the 
church parking lot. The government was compensating the church for direct harm 
done to its property by the government.

A similar example: If a government took church property by eminent domain, the 
government would need to send a check to the church. Or, in a different 
context, if the church overpaid payroll taxes for a church-employed gardener, 
the church would get a check from the government for the overpayment.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, May 09, 2016 4:10 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal 
protection" to all when it comes to use?

The EITC is no more a "salary supplement" than Food Stamps.  These are 
transfers to people based on need, and sometimes triggered by work, or 
conditioned on work.  They are not given in exchange for work, and the giver 
(the U.S.) has no control over the work done or the employee.  So that is no 
example of a violation of the principle that government may not pay the 
salaries of clergy in private faith communities.  (The U.S. does have military 
chaplains, and it pays them salaries.  That's a problem unique to that context 
-- providing military chaplains is an accommodation of the needs of members of 
the Armed Forces, and it has long historical warrant.  See Lupu & Tuttle, Ira 
C. Lupu & Robert W. Tuttle, Instruments of Accommodation: The Military 
Chaplaincy and the Constitution, 110 W. Va. L. Rev. 89 (2007), available here: 
http://scholarship.law.gwu.edu/faculty_publications/965

Re; the construction of churches -- rebuilding them after an emergency, or 
maintaining them for secular, historical reasons may be quite different from 
constructing them in the first place.   Even within that distinction, there may 
be a further distinction between reconstructing facades and exteriors, as 
compared to reconstructing worship space.  See Lupu & Tuttle, Historic 
Preservation Grants to Houses of Worship: A Case Study in the Survival of 
Separationism, 43 BC L Rev  (2002), available here: 
http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2148=faculty_publications.

On Mon, May 9, 2016 at 6:25 PM, Volokh, Eugene 
> wrote:
   1.  The EITC 
(https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit) 
is available to people who earn income, but less than a threshold – a very low 
threshold if they have no children ($14,820 for single filers), a higher one if 
they have children ($39,131 for single parents of one child, see 
https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
 for more details).  Someone with $20,000 in income, no spouse, and one child 
living at home will get about $3,000.

   2.  I think this is indeed a salary supplement – it supplements 
income, and is unavailable if there is no earned income.  If my hypothetical 
poor minister didn’t have earnings at all, he wouldn’t get the EITC.  It is 
indeed available to employees generally, not just to ministers, which is 
precisely why I’m using this here:  It’s an example of a salary supplement 
available on an equal basis.

   3.  I gave this as a response to Chip’s view argument that there 
is “a deep and abiding constitutional principle that the government may not ... 
pay the salaries of clergy in private faith communities”; that argument, I 
assume didn’t turn on whether the check is sent to a church or to the clergy 
member.  The EITC example, I think, helps show that this “principle” shouldn’t 
apply to programs where the clergy get a salary supplement because they are 
earners generally, rather than because they are members of the clergy.

   But if you want an example of the government sending a check to 
a church, let me return to the Oklahoma City example, which I think I’ve 
mentioned in the past.  Following the Oklahoma City bombing, Congress provided 
funding to help nonprofit organizations rebuild from the blast.  A church 
located near the bombed federal building sought “$12,000 from the Federal 
Emergency Management Agency to cover uninsured damages caused after the blast, 
when rescuers placed bloody bodies on the carpeted church floor and pitched 
tents in its newly resurfaced parking lot.”  FEMA at first “refused by saying 
the aid would violate the constitutional separation of church and state,” but 
later changed its mind under pressure from members of the Oklahoma 
Congressional delegation.  Laura Vozzella, Aftermath 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Ira Lupu]

The EITC is no more a "salary supplement" than Food Stamps.  These are
transfers to people based on need, and sometimes triggered by work, or
conditioned on work.  They are not given in exchange for work, and the
giver (the U.S.) has no control over the work done or the employee.  So
that is no example of a violation of the principle that government may not
pay the salaries of clergy in private faith communities.  (The U.S. does
have military chaplains, and it pays them salaries.  That's a problem
unique to that context -- providing military chaplains is an accommodation
of the needs of members of the Armed Forces, and it has long historical
warrant.  See Lupu & Tuttle, Ira C. Lupu & Robert W. Tuttle, Instruments of
Accommodation: The Military Chaplaincy and the Constitution, 110 W. Va. L.
Rev. 89 (2007), available here:
http://scholarship.law.gwu.edu/faculty_publications/965

Re; the construction of churches -- rebuilding them after an emergency, or
maintaining them for secular, historical reasons may be quite different
from constructing them in the first place.   Even within that distinction,
there may be a further distinction between reconstructing facades and
exteriors, as compared to reconstructing worship space.  See Lupu & Tuttle,
Historic Preservation Grants to Houses of Worship: A Case Study in the
Survival of Separationism, 43 BC L Rev  (2002), available here:
http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2148=faculty_publications
.

On Mon, May 9, 2016 at 6:25 PM, Volokh, Eugene  wrote:

>1.  The EITC (
> https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit)
> is available to people who earn income, but less than a threshold – a very
> low threshold if they have no children ($14,820 for single filers), a
> higher one if they have children ($39,131 for single parents of one child,
> see
> https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
> for more details).  Someone with $20,000 in income, no spouse, and one
> child living at home will get about $3,000.
>
>
>
>2.  I think this is indeed a salary supplement – it
> supplements income, and is unavailable if there is no earned income.  If my
> hypothetical poor minister didn’t have earnings at all, he wouldn’t get the
> EITC.  It is indeed available to employees generally, not just to
> ministers, which is precisely why I’m using this here:  It’s an example of
> a salary supplement available on an equal basis.
>
>
>
>3.  I gave this as a response to Chip’s view argument that
> there is “a deep and abiding constitutional principle that the government
> may not ... pay the salaries of clergy in private faith communities”; that
> argument, I assume didn’t turn on whether the check is sent to a church or
> to the clergy member.  The EITC example, I think, helps show that this
> “principle” shouldn’t apply to programs where the clergy get a salary
> supplement *because they are earners generally*, rather than because they
> are members of the clergy.
>
>
>
>But if you want an example of the government sending a
> check to a church, let me return to the Oklahoma City example, which I
> think I’ve mentioned in the past.  Following the Oklahoma City bombing,
> Congress provided funding to help nonprofit organizations rebuild from the
> blast.  A church located near the bombed federal building sought “$12,000
> from the Federal Emergency Management Agency to cover uninsured damages
> caused after the blast, when rescuers placed bloody bodies on the carpeted
> church floor and pitched tents in its newly resurfaced parking lot.”  FEMA
> at first “refused by saying the aid would violate the constitutional
> separation of church and state,” but later changed its mind under pressure
> from members of the Oklahoma Congressional delegation.  Laura Vozzella, 
> *Aftermath
> Gives New Confidence to Oklahomans*, J. Rec. (Okla. City), Apr. 19,
> 1996.
>
>
>
> Was the check that FEMA ultimately sent an Establishment Clause
> violation?  If the government gives funds for all property owners to
> rebuild following a terrorist attack, a hurricane, or whatever else, is the
> government obligated to exclude churches, on the ground that “We have a
> deep and abiding constitutional principle that the government may not pay
> to build houses of worship”?  What if the government gives funds for
> altering buildings to withstand earthquakes, and thus potentially saving
> lives of those in the buildings; would the government have to exclude
> churches?  Chip’s theory suggests that indeed the government has to leave
> the people who visit churches unprotected, even as it’s protecting everyone
> else.  That doesn’t seem right to me.
>
>
>
> Eugene
>
>
>
>
>
> Marty Lederman writes:
>
>
>
> Eugene:  Can you offer more details about who gets the EITC and when?
>
>
>
> In any event, given that 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

Chip didn't make up that principle, nor did he defend it (on the merits) as
an absolute EC prohibition that should admit of no exceptions.  Instead, he
was merely pointing out that both the Supreme Court and about half the
states have insisted upon it, and articulated it often, for a very long
time, as a matter of federal constitutional law (in the case of the Court)
and of state constitutional law (in the case of about half the states).

"It is, of course, true that, if the State pays a church's bills, it is
subsidizing it, and we must guard against this abuse."


Where does that quotation come from?  Not Chip, not me, not Justice
Stevens, not Justice Souter.  From Justice Kennedy's majority opinion in
*Rosenberger*.


"The most important reason for according special treatment to direct money
grants [to religious institutions] is that this form of aid falls
precariously close to the original object of the Establishment Clause’s
prohibition."


That's from O'Connor's governing opinion in *Mitchell*.


“[The State] cannot consistently with the ‘establishment of religion’
clause of the First Amendment contribute tax-raised funds to the support of
an institution which teaches the tenets and faith of any church."


That, of course, is from *Everson*.

Now, I happily acknowledge that one might be able to construct particular
funding schemes -- perhaps the Missouri playground surface grant program is
one such scheme, depending on some of its characteristics -- that do not
implicate any of the concerns that animate that longstanding "no direct
funding of churches" principle.  Perhaps there are even compelling reasons
for the Court to carve out some discrete circumstances in which the EC does
not bar such direct funding, notwithstanding that it has never before done
so.

Even so, the argument being made by the petitioner in *LTC*, and by its
amici, including Eugene, appears to be much more farsweeping than that --
namely, that a state may not establish a categorical ban on direct funding
of churches, in accord with the Kennedy statement in *Rosenberger*, and
despite the fact that such bans are common and almost all are of very old
vintage.

As for the EITC, if I'm understanding you correctly, Eugene, it does not
involve the federal government sending direct money grants to anyone, let
alone to churches.

On Mon, May 9, 2016 at 6:25 PM, Volokh, Eugene  wrote:

>1.  The EITC (
> https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit)
> is available to people who earn income, but less than a threshold – a very
> low threshold if they have no children ($14,820 for single filers), a
> higher one if they have children ($39,131 for single parents of one child,
> see
> https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
> for more details).  Someone with $20,000 in income, no spouse, and one
> child living at home will get about $3,000.
>
>
>
>2.  I think this is indeed a salary supplement – it
> supplements income, and is unavailable if there is no earned income.  If my
> hypothetical poor minister didn’t have earnings at all, he wouldn’t get the
> EITC.  It is indeed available to employees generally, not just to
> ministers, which is precisely why I’m using this here:  It’s an example of
> a salary supplement available on an equal basis.
>
>
>
>3.  I gave this as a response to Chip’s view argument that
> there is “a deep and abiding constitutional principle that the government
> may not ... pay the salaries of clergy in private faith communities”; that
> argument, I assume didn’t turn on whether the check is sent to a church or
> to the clergy member.  The EITC example, I think, helps show that this
> “principle” shouldn’t apply to programs where the clergy get a salary
> supplement *because they are earners generally*, rather than because they
> are members of the clergy.
>
>
>
>But if you want an example of the government sending a
> check to a church, let me return to the Oklahoma City example, which I
> think I’ve mentioned in the past.  Following the Oklahoma City bombing,
> Congress provided funding to help nonprofit organizations rebuild from the
> blast.  A church located near the bombed federal building sought “$12,000
> from the Federal Emergency Management Agency to cover uninsured damages
> caused after the blast, when rescuers placed bloody bodies on the carpeted
> church floor and pitched tents in its newly resurfaced parking lot.”  FEMA
> at first “refused by saying the aid would violate the constitutional
> separation of church and state,” but later changed its mind under pressure
> from members of the Oklahoma Congressional delegation.  Laura Vozzella, 
> *Aftermath
> Gives New Confidence to Oklahomans*, J. Rec. (Okla. City), Apr. 19,
> 1996.
>
>
>
> Was the check that FEMA ultimately sent an Establishment Clause
> violation?  If 

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

   1.  The EITC 
(https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit) 
is available to people who earn income, but less than a threshold – a very low 
threshold if they have no children ($14,820 for single filers), a higher one if 
they have children ($39,131 for single parents of one child, see 
https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
 for more details).  Someone with $20,000 in income, no spouse, and one child 
living at home will get about $3,000.

   2.  I think this is indeed a salary supplement – it supplements 
income, and is unavailable if there is no earned income.  If my hypothetical 
poor minister didn’t have earnings at all, he wouldn’t get the EITC.  It is 
indeed available to employees generally, not just to ministers, which is 
precisely why I’m using this here:  It’s an example of a salary supplement 
available on an equal basis.

   3.  I gave this as a response to Chip’s view argument that there 
is “a deep and abiding constitutional principle that the government may not ... 
pay the salaries of clergy in private faith communities”; that argument, I 
assume didn’t turn on whether the check is sent to a church or to the clergy 
member.  The EITC example, I think, helps show that this “principle” shouldn’t 
apply to programs where the clergy get a salary supplement because they are 
earners generally, rather than because they are members of the clergy.

   But if you want an example of the government sending a check to 
a church, let me return to the Oklahoma City example, which I think I’ve 
mentioned in the past.  Following the Oklahoma City bombing, Congress provided 
funding to help nonprofit organizations rebuild from the blast.  A church 
located near the bombed federal building sought “$12,000 from the Federal 
Emergency Management Agency to cover uninsured damages caused after the blast, 
when rescuers placed bloody bodies on the carpeted church floor and pitched 
tents in its newly resurfaced parking lot.”  FEMA at first “refused by saying 
the aid would violate the constitutional separation of church and state,” but 
later changed its mind under pressure from members of the Oklahoma 
Congressional delegation.  Laura Vozzella, Aftermath Gives New Confidence to 
Oklahomans, J. Rec. (Okla. City), Apr. 19, 1996.

Was the check that FEMA ultimately sent an Establishment Clause violation?  If 
the government gives funds for all property owners to rebuild following a 
terrorist attack, a hurricane, or whatever else, is the government obligated to 
exclude churches, on the ground that “We have a deep and abiding constitutional 
principle that the government may not pay to build houses of worship”?  What if 
the government gives funds for altering buildings to withstand earthquakes, and 
thus potentially saving lives of those in the buildings; would the government 
have to exclude churches?  Chip’s theory suggests that indeed the government 
has to leave the people who visit churches unprotected, even as it’s protecting 
everyone else.  That doesn’t seem right to me.

Eugene


Marty Lederman writes:

Eugene:  Can you offer more details about who gets the EITC and when?

In any event, given that it's a tax credit (and for individuals, at that), I 
assume that it does not entail the government sending a check to a church.  
Rightly or wrongly, the Court has always treated tax benefits different from 
direct funding for purposes of the EC.  See Walz, Mueller, etc.  Moreover, it's 
not only the Court that has drawn that distinction; history has, too:  Whereas 
more than half the states have constitutional provisions prohibiting the 
expenditure of appropriated funds to churches, I'm not aware of any such 
tradition prohibiting tax benefits to religion, and it wouldn't surprise me if 
many states have provided such credits/deductions/etc., even while prohibiting 
direct funding.

Even if the EC would not prohibit the particular grant to a church at issue in 
TLC--say, because of an unusual set of conditions applicable to that grant 
program--the principal question in the case would remain, namely, whether the 
longstanding, bright-line state constitutional provisions in question are 
unconstitutional, either on facially or "as applied" to any cases in which the 
EC would not itself prohibit the funding to churches.

Samuel Brunson writes:

Eugene, I don’t think your EITC example does the work you want it to do. 
Specifically, I’d dispute your assertion that it’s a salary supplement. It’s 
not. It’s a social safety net payment, only (for various political reasons) the 
amount is tied into an individual’s earning income.

Certainly the EITC provides a refundable credit to ministers whose earnings 
fall within a particular range, but it provides that benefit to anybody whose 
earnings fall within the relevant range. But it’s not meant to 

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Brunson, Samuel]

Eugene, I don’t think your EITC example does the work you want it to do. 
Specifically, I’d dispute your assertion that it’s a salary supplement. It’s 
not. It’s a social safety net payment, only (for various political reasons) the 
amount is tied into an individual’s earning income.

Certainly the EITC provides a refundable credit to ministers whose earnings 
fall within a particular range, but it provides that benefit to anybody whose 
earnings fall within the relevant range. But it’s not meant to supplement 
salary; rather, it’s intended to provide some minimum standard of living,

I mean, if you really want to, you can argue that it economically functions to 
allow employers to underpay their employees. But in that regard, the EITC 
doesn’t function any differently than Medicaid and TANF and Section 8 vouchers 
and any other welfare program.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, May 09, 2016 4:39 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal 
protection" to all when it comes to use?

Eugene:  Can you offer more details about who gets the EITC and when?

In any event, given that it's a tax credit (and for individuals, at that), I 
assume that it does not entail the government sending a check to a church.  
Rightly or wrongly, the Court has always treated tax benefits different from 
direct funding for purposes of the EC.  See Walz, Mueller, etc.  Moreover, it's 
not only the Court that has drawn that distinction; history has, too:  Whereas 
more than half the states have constitutional provisions prohibiting the 
expenditure of appropriated funds to churches, I'm not aware of any such 
tradition prohibiting tax benefits to religion, and it wouldn't surprise me if 
many states have provided such credits/deductions/etc., even while prohibiting 
direct funding.

Even if the EC would not prohibit the particular grant to a church at issue in 
TLC--say, because of an unusual set of conditions applicable to that grant 
program--the principal question in the case would remain, namely, whether the 
longstanding, bright-line state constitutional provisions in question are 
unconstitutional, either on facially or "as applied" to any cases in which the 
EC would not itself prohibit the funding to churches.

On Sun, May 8, 2016 at 9:24 PM, Volokh, Eugene 
> wrote:
   Well, let’s test that principle against paying the salaries of 
clergy in private faith communities, when it comes to an equal-treatment 
system.  I posted about this in January, but I don’t think there were any 
reactions to it:

It turns out that the government actually does offer salary supplements for 
ministers, alongside other employees who earn under a threshold amount, via the 
Earned Income Tax Credit.  For instance, if a minister is a head of household, 
has two children, and earns $20,000 (think some assistant pastor, perhaps 
part-time, at some poor church), he will get a substantial net payment from the 
government.  That's taxpayer money going to subsidize ministers (again, 
alongside the other earners in the same boat).  Does this violate the 
Establishment Clause, on the grounds that the government is paying part of a 
clergy member’s salary?
   Note that this isn't a program that's available to everyone, the 
way police or fire protection is: it's only available to a minority of 
taxpayers.  Unconstitutional?

   As to the possibility of sect discrimination in Trinity 
Lutheran, it seems extremely remote to me – as we’ve discussed on the list, the 
program there (like the Earned Income Tax Credit) relies on objective factors.

   Eugene

Chip Lupu writes:

Equality cannot be the only prism for measuring Religion Clause norms.  
Non-establishment does at times mandate different treatment -- favorable to 
religion in the context of the ministerial exception, and unfavorable in the 
context of public school sponsored speech.  A public school may sponsor a 
morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, 
the Lord's Prayer, etc.

Whether government funding should be seen the same way as state sponsored 
speech is a question, and "equal treatment is not establishment" cannot be the 
simple answer.  We have a deep and abiding constitutional principle that the 
government may not pay to build houses of worship or to pay the salaries of 
clergy in private faith communities.  So if a state sets up a direct funding 
program to help build structures for valuable community institutions, 
longstanding principles would say the program can help pay to build an art 
museum or musical venue, but cannot offer money to build a church, mosque, or 
synagogue.

I understand that we can always debate whether to maintain that settlement.  
And 

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

   Well, let’s test that principle against paying the salaries of 
clergy in private faith communities, when it comes to an equal-treatment 
system.  I posted about this in January, but I don’t think there were any 
reactions to it:

It turns out that the government actually does offer salary supplements for 
ministers, alongside other employees who earn under a threshold amount, via the 
Earned Income Tax Credit.  For instance, if a minister is a head of household, 
has two children, and earns $20,000 (think some assistant pastor, perhaps 
part-time, at some poor church), he will get a substantial net payment from the 
government.  That's taxpayer money going to subsidize ministers (again, 
alongside the other earners in the same boat).  Does this violate the 
Establishment Clause, on the grounds that the government is paying part of a 
clergy member’s salary?
   Note that this isn't a program that's available to everyone, the 
way police or fire protection is: it's only available to a minority of 
taxpayers.  Unconstitutional?

   As to the possibility of sect discrimination in Trinity 
Lutheran, it seems extremely remote to me – as we’ve discussed on the list, the 
program there (like the Earned Income Tax Credit) relies on objective factors.

   Eugene

Chip Lupu writes:

Equality cannot be the only prism for measuring Religion Clause norms.  
Non-establishment does at times mandate different treatment -- favorable to 
religion in the context of the ministerial exception, and unfavorable in the 
context of public school sponsored speech.  A public school may sponsor a 
morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, 
the Lord's Prayer, etc.

Whether government funding should be seen the same way as state sponsored 
speech is a question, and "equal treatment is not establishment" cannot be the 
simple answer.  We have a deep and abiding constitutional principle that the 
government may not pay to build houses of worship or to pay the salaries of 
clergy in private faith communities.  So if a state sets up a direct funding 
program to help build structures for valuable community institutions, 
longstanding principles would say the program can help pay to build an art 
museum or musical venue, but cannot offer money to build a church, mosque, or 
synagogue.

I understand that we can always debate whether to maintain that settlement.  
And the Trinity Lutheran Church case, involving grants for safe surfaces in 
playgrounds, hardly tests the core of it -- rather, it tests whether the states 
can expand the periphery of that no funding principle.  The rationale for the 
principle -- fear of sect discrimination; fear of government control over the 
subsidized church; fear over politicization of the church's teachings so as to 
curry favor with appropriators; fear of rivalry among sects for public 
resources -- may or may not be implicated in a given case.  The grant system 
for safe surfaces in playgrounds in Missouri at least touches on the 
possibility of sect discrimination -- would mosques be treated equally with 
popular Protestant denominations?  If we fear otherwise, should we have a 
prophylactic anti-funding rule, or just closely monitor for sect 
discrimination? These are subtle questions, not answered adequately by claims 
for formal equality.
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Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Ira Lupu]

Equality cannot be the only prism for measuring Religion Clause norms.
Non-establishment does at times mandate different treatment -- favorable to
religion in the context of the ministerial exception, and unfavorable in
the context of public school sponsored speech.  A public school may sponsor
a morning recitation of "Ode on a Grecian Urn," but not the NY Regents
Prayer, the Lord's Prayer, etc.

Whether government funding should be seen the same way as state sponsored
speech is a question, and "equal treatment is not establishment" cannot be
the simple answer.  We have a deep and abiding constitutional principle
that the government may not pay to build houses of worship or to pay the
salaries of clergy in private faith communities.  So if a state sets up a
direct funding program to help build structures for valuable community
institutions, longstanding principles would say the program can help pay to
build an art museum or musical venue, but cannot offer money to build a
church, mosque, or synagogue.

I understand that we can always debate whether to maintain that
settlement.  And the Trinity Lutheran Church case, involving grants for
safe surfaces in playgrounds, hardly tests the core of it -- rather, it
tests whether the states can expand the periphery of that no funding
principle.  The rationale for the principle -- fear of sect discrimination;
fear of government control over the subsidized church; fear over
politicization of the church's teachings so as to curry favor with
appropriators; fear of rivalry among sects for public resources -- may or
may not be implicated in a given case.  The grant system for safe surfaces
in playgrounds in Missouri at least touches on the possibility of sect
discrimination -- would mosques be treated equally with popular Protestant
denominations?  If we fear otherwise, should we have a prophylactic
anti-funding rule, or just closely monitor for sect discrimination? These
are subtle questions, not answered adequately by claims for formal
equality.

On Thu, May 5, 2016 at 5:20 PM, Volokh, Eugene  wrote:

> Here’s how I understand the state of play with regard to
> discrimination in favor of and against religious institutions and beliefs.
>
>
>
> 1.  When it comes to *government spending*, the Court has
> already generally taken the view that religious institutions can’t get
> special benefits.  See *Texas Monthly v. Bullock* and the implications of
> the old funding cases, even as modified by *Mitchell *and *Zelman*.  The
> question in *Trinity Lutheran* is where we should move more towards equal
> treatment – no special money for religious institutions, but no special
> exclusion from generally available money (subject to *Locke*) – or have a
> rule in which discrimination in favor of religious institutions in funding
> is forbidden, but discrimination against them is allowed.
>
>
>
> 2.  When it comes to *direct regulation*, the law is
> already pretty clear.  The government may not discriminate against
> religious practices and institutions, see *Lukumi*; I don’t think anyone
> is challenging that in *Trinity.  *But the government may (in some
> instances) exempt only religious practices and institutions, see *Yoder*;
> *Frazee*; *Cutter*, and in a few situations must exempt religious
> practices and institutions, even if it doesn’t exempt similar secular ones,
> see *Hosanna-Tabor *and what remains of *Yoder *and *Frazee*.  I’m not
> sure this is right; perhaps the rule should be mandatory equal treatment
> when it comes to regulation and exemption, as Harlan argued in *Welsh*
> and as Stevens argued in *Boerne*.  But the rule we have is pretty well
> settled.
>
>
>
> It may be theoretically possible that this clear state of
> the law in item 2 will somehow be undermined by equal treatment for
> religious institutions in item 1.  But I don’t see that as especially
> likely – and I thus don’t see why it makes sense for religious institutions
> to give up the opportunity for equal treatment with regard to funding, on
> the hope that somehow this will preserve favorable treatment with regard to
> exemptions.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Thursday, May 05, 2016 9:33 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran Church - will churches have to extend
> "equal protection" to all when it comes to use?
>
>
>
> As I understood Michael's observation, it was that the topside briefs in 
> *Trinity
> Lutheran* argue at great length that churches, as such, can virtually
> never be disfavored vis-a-vis similarly situated secular institutions,
> under both the Free Exercise and Equal Protection Clauses -- whereas the
> writers of those briefs would, of course, strongly argue that a legislature
> generally can, and sometimes 

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

Here’s how I understand the state of play with regard to 
discrimination in favor of and against religious institutions and beliefs.

1.  When it comes to government spending, the Court has already 
generally taken the view that religious institutions can’t get special 
benefits.  See Texas Monthly v. Bullock and the implications of the old funding 
cases, even as modified by Mitchell and Zelman.  The question in Trinity 
Lutheran is where we should move more towards equal treatment – no special 
money for religious institutions, but no special exclusion from generally 
available money (subject to Locke) – or have a rule in which discrimination in 
favor of religious institutions in funding is forbidden, but discrimination 
against them is allowed.

2.  When it comes to direct regulation, the law is already 
pretty clear.  The government may not discriminate against religious practices 
and institutions, see Lukumi; I don’t think anyone is challenging that in 
Trinity.  But the government may (in some instances) exempt only religious 
practices and institutions, see Yoder; Frazee; Cutter, and in a few situations 
must exempt religious practices and institutions, even if it doesn’t exempt 
similar secular ones, see Hosanna-Tabor and what remains of Yoder and Frazee.  
I’m not sure this is right; perhaps the rule should be mandatory equal 
treatment when it comes to regulation and exemption, as Harlan argued in Welsh 
and as Stevens argued in Boerne.  But the rule we have is pretty well settled.

It may be theoretically possible that this clear state of the 
law in item 2 will somehow be undermined by equal treatment for religious 
institutions in item 1.  But I don’t see that as especially likely – and I thus 
don’t see why it makes sense for religious institutions to give up the 
opportunity for equal treatment with regard to funding, on the hope that 
somehow this will preserve favorable treatment with regard to exemptions.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, May 05, 2016 9:33 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal 
protection" to all when it comes to use?

As I understood Michael's observation, it was that the topside briefs in 
Trinity Lutheran argue at great length that churches, as such, can virtually 
never be disfavored vis-a-vis similarly situated secular institutions, under 
both the Free Exercise and Equal Protection Clauses -- whereas the writers of 
those briefs would, of course, strongly argue that a legislature generally can, 
and sometimes must, treat churches more favorably than such secular 
institutions.  His fear, as I understood it (but perhaps I misunderstood him), 
was that the emphasis on formal equality in the briefs might prompt the Court 
to settle upon a holding closer to strict formal equality than it has ever 
previously announced -- which could be damaging to claims for permissive 
accommodations (akin to the fears raised by the "HHS can't favor churches" 
argument of the petitioners in Zubik).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene 
> wrote:
Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael 
> Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> >
> Subject: Trinity Lutheran Church - will churches 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

Please allow me to qualify that:   The principal issue in *TLC* is whether
the basic "no *direct funding *to churches" rule found in approximately
half of states' constitutions -- a rule that was, indeed, a bedrock
requirement of the Court's *Establishment Clause *doctrine until very
recently (and perhaps it still is, at least as a matter of precedent) -- is
now unconstitutional.



On Thu, May 5, 2016 at 1:20 PM, Marty Lederman 
wrote:

> I don't think I understand Mark's questions about weddings and generally
> applicable conditions on tax benefits, none of which are raised by *Trinity
> Lutheran*.  The principal issue here is whether the basic "no aid to
> churches" rule found in approximately half of states' constitutions -- a
> rule that was, indeed, a bedrock requirement of the Court's *Establishment
> Clause *doctrine until very recently (and perhaps it still is, at least
> as a matter of precedent) -- is now unconstitutional.
>
> On Thu, May 5, 2016 at 1:14 PM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
>> I suppose there's a baseline question here, along with an
>> unconstitutional conditions issue and probably other issues. Could a
>> synagogue be required to allow a wedding to be held on its property between
>> a Jew and a non-Jew, as a condition of receiving protection of its property
>> by a fire department? (I realize that not all synagogues would oppose such
>> a mixed marriage.) Or of receiving a building permit on an equal basis with
>> other organizations (absent RLUIPA)? Freedom of religion (along with other
>> freedoms) means little if the ordinary benefits of our society can be
>> denied to a person or group because of the exercise of that freedom. The
>> Bob Jones case is either an outlier or an example of a benefit (tax
>> treatment as a charity) that is not an ordinary benefit.
>>
>> We were all assured that the same-sex marriage issue could never be the
>> basis for application of Bob Jones. That assurance seems, in Nixonian
>> terms, to have become inoperative.
>>
>> Of course a person or group that receives benefits from a government
>> ordinarily does not as a result become a state actor for equal protection
>> purposes; I assume no one is arguing to the contrary, absent a government
>> function or symbiosis concern.
>>
>> Mark
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>>
>> Sent from my iPad
>>
>> On May 5, 2016, at 9:33 AM, Marty Lederman 
>> wrote:
>>
>> As I understood Michael's observation, it was that the topside briefs in 
>> *Trinity
>> Lutheran* argue at great length that churches, as such, can virtually
>> never be disfavored vis-a-vis similarly situated secular institutions,
>> under both the Free Exercise and Equal Protection Clauses -- whereas the
>> writers of those briefs would, of course, strongly argue that a legislature
>> generally can, and sometimes must, treat churches *more favorably* than
>> such secular institutions.  His fear, as I understood it (but perhaps I
>> misunderstood him), was that the emphasis on formal equality in the briefs
>> might prompt the Court to settle upon a holding closer to strict formal
>> equality than it has ever previously announced -- which could be damaging
>> to claims for permissive accommodations (akin to the fears raised by the
>> "HHS can't favor churches" argument of the petitioners in *Zubik*).
>>
>> On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene 
>> wrote:
>>
>>> Hasn't that ship sailed already?  We know from Bob Jones that
>>> religious universities are subject to loss of their charitable tax
>>> exemption if they discriminate, and that the government indeed can and does
>>> use the threat of withdrawing funds as a means for changing church policy.
>>> Maybe in some super-pure world whether religious institutions didn't even
>>> get tax exemptions, they could resist such restrictions.  But even there,
>>> of course, the government would have broad power to impose restrictions,
>>> just in its capacity as sovereign and even without funding; recall, for
>>> instance, the New Jersey wedding venue case, where a church-owned venue was
>>> held subject to antidiscrimination law even without any funding hook.
>>>
>>> Surrendering any Free Exercise Clause claims to equal treatment
>>> in funding, as a means of trying to strengthen their claims to autonomy,
>>> would be a poor choice for churches, I think.  Those who want to impose
>>> antidiscrimination laws on churches and church-owned organizations
>>> generally aren't terribly interested in giving churches such autonomy,
>>> whether or not churches get equal access to generally available benefits.
>>>
>>> Eugene
>>>
>>> > -Original Message-
>>> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
>>> > boun...@lists.ucla.edu] On Behalf Of Michael Peabody
>>> > Sent: Thursday, May 05, 2016 8:47 AM
>>> > To: Law & 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Scarberry, Mark]

I suppose there's a baseline question here, along with an unconstitutional 
conditions issue and probably other issues. Could a synagogue be required to 
allow a wedding to be held on its property between a Jew and a non-Jew, as a 
condition of receiving protection of its property by a fire department? (I 
realize that not all synagogues would oppose such a mixed marriage.) Or of 
receiving a building permit on an equal basis with other organizations (absent 
RLUIPA)? Freedom of religion (along with other freedoms) means little if the 
ordinary benefits of our society can be denied to a person or group because of 
the exercise of that freedom. The Bob Jones case is either an outlier or an 
example of a benefit (tax treatment as a charity) that is not an ordinary 
benefit.

We were all assured that the same-sex marriage issue could never be the basis 
for application of Bob Jones. That assurance seems, in Nixonian terms, to have 
become inoperative.

Of course a person or group that receives benefits from a government ordinarily 
does not as a result become a state actor for equal protection purposes; I 
assume no one is arguing to the contrary, absent a government function or 
symbiosis concern.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On May 5, 2016, at 9:33 AM, Marty Lederman 
> wrote:

As I understood Michael's observation, it was that the topside briefs in 
Trinity Lutheran argue at great length that churches, as such, can virtually 
never be disfavored vis-a-vis similarly situated secular institutions, under 
both the Free Exercise and Equal Protection Clauses -- whereas the writers of 
those briefs would, of course, strongly argue that a legislature generally can, 
and sometimes must, treat churches more favorably than such secular 
institutions.  His fear, as I understood it (but perhaps I misunderstood him), 
was that the emphasis on formal equality in the briefs might prompt the Court 
to settle upon a holding closer to strict formal equality than it has ever 
previously announced -- which could be damaging to claims for permissive 
accommodations (akin to the fears raised by the "HHS can't favor churches" 
argument of the petitioners in Zubik).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene 
> wrote:
Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael 
> Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> >
> Subject: Trinity Lutheran Church - will churches have to extend "equal
> protection" to all when it comes to use?
>
> In reading the briefs on the Trinity Lutheran Church case, I see a lot of 
> reference
> to churches being denied "equal protection" when state laws specifically 
> prohibit
> them from participating in otherwise neutral state aid programs that are
> available to other civic institutions. Yet churches often vigorously argue 
> that
> they are exempt from "equal protection" when it comes to access to their
> facilities.
>
> But in turn, let's say that Trinity wins the case - does that mean that 
> churches
> that receive the funding could be subject to discrimination claims brought by
> citizens who are prohibited from accessing the infrastructure, or are
> discriminated against while on the infrastructure, because the church teaches
> against their protected class (i.e. religion, gender, sexual orientation, 
> etc.)?
>
> I'm thinking that churches that argue for equal 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Marty Lederman]

As I understood Michael's observation, it was that the topside briefs
in *Trinity
Lutheran* argue at great length that churches, as such, can virtually never
be disfavored vis-a-vis similarly situated secular institutions, under both
the Free Exercise and Equal Protection Clauses -- whereas the writers of
those briefs would, of course, strongly argue that a legislature generally
can, and sometimes must, treat churches *more favorably* than such secular
institutions.  His fear, as I understood it (but perhaps I misunderstood
him), was that the emphasis on formal equality in the briefs might prompt
the Court to settle upon a holding closer to strict formal equality than it
has ever previously announced -- which could be damaging to claims for
permissive accommodations (akin to the fears raised by the "HHS can't favor
churches" argument of the petitioners in *Zubik*).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene  wrote:

> Hasn't that ship sailed already?  We know from Bob Jones that
> religious universities are subject to loss of their charitable tax
> exemption if they discriminate, and that the government indeed can and does
> use the threat of withdrawing funds as a means for changing church policy.
> Maybe in some super-pure world whether religious institutions didn't even
> get tax exemptions, they could resist such restrictions.  But even there,
> of course, the government would have broad power to impose restrictions,
> just in its capacity as sovereign and even without funding; recall, for
> instance, the New Jersey wedding venue case, where a church-owned venue was
> held subject to antidiscrimination law even without any funding hook.
>
> Surrendering any Free Exercise Clause claims to equal treatment in
> funding, as a means of trying to strengthen their claims to autonomy, would
> be a poor choice for churches, I think.  Those who want to impose
> antidiscrimination laws on churches and church-owned organizations
> generally aren't terribly interested in giving churches such autonomy,
> whether or not churches get equal access to generally available benefits.
>
> Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> > Sent: Thursday, May 05, 2016 8:47 AM
> > To: Law & Religion issues for Law Academics 
> > Subject: Trinity Lutheran Church - will churches have to extend "equal
> > protection" to all when it comes to use?
> >
> > In reading the briefs on the Trinity Lutheran Church case, I see a lot
> of reference
> > to churches being denied "equal protection" when state laws specifically
> prohibit
> > them from participating in otherwise neutral state aid programs that are
> > available to other civic institutions. Yet churches often vigorously
> argue that
> > they are exempt from "equal protection" when it comes to access to their
> > facilities.
> >
> > But in turn, let's say that Trinity wins the case - does that mean that
> churches
> > that receive the funding could be subject to discrimination claims
> brought by
> > citizens who are prohibited from accessing the infrastructure, or are
> > discriminated against while on the infrastructure, because the church
> teaches
> > against their protected class (i.e. religion, gender, sexual
> orientation, etc.)?
> >
> > I'm thinking that churches that argue for equal protection when it comes
> to
> > compelling state funding of their institutions, and claim that they
> should be on
> > an equal footing when it comes to similar secular civic organizations,
> should
> > recognize that civic organizations are also held to a higher standard
> when it
> > comes to discrimination claims.
> >
> > Churches that receive funding and simultaneously seek to reserve the
> right to
> > discriminate should expect that they will be held to the same
> non-discrimination
> > standards as other civic organizations as a condition of receiving such
> funding
> > and that they will need to take "equal protection" into account when it
> comes to
> > people and other organizations which seek to access and use churches'
> state-
> > funded infrastructure.
> >
> > Put simply, could Trinity Lutheran Church be a Trojan Horse?
> >
> > I would be interested in your thoughts.
> >
> > Michael Peabody, Esq.
> > ReligiousLiberty.TV
> > ___
> > 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 Church - will churches have to extend "equal protection" to all when it comes to use?

[Michael Peabody]

As a corollary to my question, I would raise the issue that while tax
exemption and access to existing infrastructure, could potentially be
changed or adjusted, couldn't building infrastructure with state funds
under an "equal protection" theory create a permanent easement, as it
were, where non-discrimination would exist in perpetuity and the
church could not, at will, destroy the state-funded infrastructure for
the improper purpose of rebooting the right to discriminate?

Under this, a state-funded painting on a wall could be moved to
another facility if it "isn't working out," a church could opt-out of
a temporary funding scheme the next time, but state-funded concrete
foundations would exist for centuries, wouldn't it?

Certainly while there are arguments that the government can move in to
regulate, existing examples are few and far between. But with an
application for "equal protection" funding,
it would appear that churches would voluntarily surrender the point
that is virtually impossible to defend unless a court is willing
to adopt a cognitively dissonate position that the "state may not
discriminate when it comes to funding
churches, but churches may discriminate in the use of the same
funding."

I don't think the churches have thought this out very well in advance
- like the Biblical Esau they could be selling control of their facilities for a
bowl of porridge.

Michael Peabody, Esq.
ReligiousLiberty.TV
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Volokh, Eugene]

Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> Subject: Trinity Lutheran Church - will churches have to extend "equal
> protection" to all when it comes to use?
> 
> In reading the briefs on the Trinity Lutheran Church case, I see a lot of 
> reference
> to churches being denied "equal protection" when state laws specifically 
> prohibit
> them from participating in otherwise neutral state aid programs that are
> available to other civic institutions. Yet churches often vigorously argue 
> that
> they are exempt from "equal protection" when it comes to access to their
> facilities.
> 
> But in turn, let's say that Trinity wins the case - does that mean that 
> churches
> that receive the funding could be subject to discrimination claims brought by
> citizens who are prohibited from accessing the infrastructure, or are
> discriminated against while on the infrastructure, because the church teaches
> against their protected class (i.e. religion, gender, sexual orientation, 
> etc.)?
> 
> I'm thinking that churches that argue for equal protection when it comes to
> compelling state funding of their institutions, and claim that they should be 
> on
> an equal footing when it comes to similar secular civic organizations, should
> recognize that civic organizations are also held to a higher standard when it
> comes to discrimination claims.
> 
> Churches that receive funding and simultaneously seek to reserve the right to
> discriminate should expect that they will be held to the same 
> non-discrimination
> standards as other civic organizations as a condition of receiving such 
> funding
> and that they will need to take "equal protection" into account when it comes 
> to
> people and other organizations which seek to access and use churches' state-
> funded infrastructure.
> 
> Put simply, could Trinity Lutheran Church be a Trojan Horse?
> 
> I would be interested in your thoughts.
> 
> Michael Peabody, Esq.
> ReligiousLiberty.TV
> ___
> To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
> change options, or get password, see http://lists.ucla.edu/cgi-
> bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as private.
> Anyone can subscribe to the list and read messages that are posted; people can
> read the Web archives; and list members can (rightly or wrongly) forward the
> messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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.