Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

While the "equal treatment" theory is appealing, and I think the court in
general is too focused on liberty and not enough on equality, I think using
an equality/non-discrimination approach is neither constitutionally
mandated in all settings nor is it possible to do "religiously".  The
constitution itself treats religion as a special category and so that may
mean something.  Secondly, the interests based on religion are not always
qualitatively the same as interests based on philosophy of life or other
values.

On Wed, Feb 24, 2016 at 8:24 PM, James Oleske <jole...@lclark.edu> wrote:

> A very belated thanks (the semester has gotten away from me) to Eugene for
> his clarification below. Although recognizing that the Court has not
> adopted it, Eugene endorses an equal-treatment theory that runs in both
> directions, prohibiting religion-only accommodations as well as
> religion-only exclusions. I think this position has considerable normative
> appeal. I also think Eugene's backup position -- equal treatment with
> respect to funding -- has considerable normative appeal. I'm not convinced,
> however, that either position is constitutionally mandated (i.e., that all
> religion-only accommodations are laws respecting an establishment of
> religion and that all exclusions of religion from funding programs are
> prohibitions of free exercise).
>
> - Jim
>
>
> On Mon, Jan 18, 2016 at 9:13 AM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>>I’d prefer, generally speaking, a version of Justice
>> Harlan’s view in *Welsh *and *Walz *is basically right:  The government
>> should neither discriminate in favor of or against religion; if religious
>> exemptions are given, they should also be given to comparable secular
>> objectors.
>>
>>
>>
>> I think the result in *Hosanna-Tabor *is largely right, but I think (not
>> quite consistently the Court, I realize) that the best approach would have
>> been to focus on a conclusion that similar rights would be available for
>> secular groups as well, under the Free Speech Clause.  The KKK has to be
>> free to choose its leaders based on race and religion; the Sierra Club has
>> to be free to bar leaders from speaking out in ways that it views as
>> anti-environmentalist, even when a state (such as my own California)
>> categorically bars employers from setting up rules limiting their
>> employees’ political activity.  I realize that *Hosanna-Tabor *provides
>> more protection than cases such as *Boy Scouts v. Dale*, because it
>> doesn’t require a showing that the employment law substantially burdens the
>> institution’s speech.  If that is justifiable (and I think it probably is),
>> it would simply because of the principle that the government may not decide
>> the reasonableness of religious claims; inquiring what is the true reason
>> for a religious institution’s dismissal of a ministerial employee would
>> often risk violating that principle, so it may make sense to just
>> categorically immunize employment decisions related to churches’
>> ministerial employees.
>>
>>
>>
>> But I realize that the Court has not taken my view on this, see 
>> *Hosanna-Tabor
>> *and *Cutter v. Wilkinson*.  The question then is what effect this
>> should have on the general principle of no discrimination against religious
>> people, practices, and institutions.  It seems to me that it shouldn’t.
>> That all religious groups get a rather modest special benefit in the form
>> of a few constitutionally compelled exemptions (see *Hosanna-Tabor*) and
>> that some religious people end up benefiting from religion-only exemption
>> says quite little, I think, about the possible exclusion of religious
>> people and institutions from the massive benefits offered by the modern
>> welfare state, potentially ranging into the billions of dollars’ worth
>> (e.g., when it comes to school choice funding programs).
>>
>>
>>
>> The better analogy, I think, is to ask how we deal with the question here
>> – funding.  *Texas Monthly v. Bullock *tells us that, given the
>> Establishment Clause, the government can’t discriminate *in favor of*
>> religious institutions when it comes to funding.  (That’s one reason I’m
>> skeptical about the parsonage exemption, one of the few really
>> religion-preferential tax exemptions.)  It seems to  me quite consistent
>> with that to read the *Lukumi / McDaniel *principle broadly as barring
>> government discrimination * against* religion, including when it comes
>> to funding.
>>
>>
>>
>> Eugene
>>
>>
>>
>> *F

Re: The Establishment Clause question in the Trinity Lutheran case

[James Oleske]

A very belated thanks (the semester has gotten away from me) to Eugene for
his clarification below. Although recognizing that the Court has not
adopted it, Eugene endorses an equal-treatment theory that runs in both
directions, prohibiting religion-only accommodations as well as
religion-only exclusions. I think this position has considerable normative
appeal. I also think Eugene's backup position -- equal treatment with
respect to funding -- has considerable normative appeal. I'm not convinced,
however, that either position is constitutionally mandated (i.e., that all
religion-only accommodations are laws respecting an establishment of
religion and that all exclusions of religion from funding programs are
prohibitions of free exercise).

- Jim


On Mon, Jan 18, 2016 at 9:13 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>I’d prefer, generally speaking, a version of Justice
> Harlan’s view in *Welsh *and *Walz *is basically right:  The government
> should neither discriminate in favor of or against religion; if religious
> exemptions are given, they should also be given to comparable secular
> objectors.
>
>
>
> I think the result in *Hosanna-Tabor *is largely right, but I think (not
> quite consistently the Court, I realize) that the best approach would have
> been to focus on a conclusion that similar rights would be available for
> secular groups as well, under the Free Speech Clause.  The KKK has to be
> free to choose its leaders based on race and religion; the Sierra Club has
> to be free to bar leaders from speaking out in ways that it views as
> anti-environmentalist, even when a state (such as my own California)
> categorically bars employers from setting up rules limiting their
> employees’ political activity.  I realize that *Hosanna-Tabor *provides
> more protection than cases such as *Boy Scouts v. Dale*, because it
> doesn’t require a showing that the employment law substantially burdens the
> institution’s speech.  If that is justifiable (and I think it probably is),
> it would simply because of the principle that the government may not decide
> the reasonableness of religious claims; inquiring what is the true reason
> for a religious institution’s dismissal of a ministerial employee would
> often risk violating that principle, so it may make sense to just
> categorically immunize employment decisions related to churches’
> ministerial employees.
>
>
>
> But I realize that the Court has not taken my view on this, see *Hosanna-Tabor
> *and *Cutter v. Wilkinson*.  The question then is what effect this should
> have on the general principle of no discrimination against religious
> people, practices, and institutions.  It seems to me that it shouldn’t.
> That all religious groups get a rather modest special benefit in the form
> of a few constitutionally compelled exemptions (see *Hosanna-Tabor*) and
> that some religious people end up benefiting from religion-only exemption
> says quite little, I think, about the possible exclusion of religious
> people and institutions from the massive benefits offered by the modern
> welfare state, potentially ranging into the billions of dollars’ worth
> (e.g., when it comes to school choice funding programs).
>
>
>
> The better analogy, I think, is to ask how we deal with the question here
> – funding.  *Texas Monthly v. Bullock *tells us that, given the
> Establishment Clause, the government can’t discriminate *in favor of*
> religious institutions when it comes to funding.  (That’s one reason I’m
> skeptical about the parsonage exemption, one of the few really
> religion-preferential tax exemptions.)  It seems to  me quite consistent
> with that to read the *Lukumi / McDaniel *principle broadly as barring
> government discrimination * against* religion, including when it comes to
> funding.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Sunday, January 17, 2016 5:19 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: The Establishment Clause question in the Trinity Lutheran
> case
>
>
>
> An equal treatment theory also does not fit the "ministerial exception"
> constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I
> wonder if Eugene, and others who question the Trinity Lutheran Church
> outcome, think that unanimous decision is incorrect.
>
>
> Sent from my iPhone
>
>
> On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu> wrote:
>
> To clarify, Eugene: Would this "maximalist equal treatment" theory
> prohibit legislative exemptions available to religion but not non-religion,

RE: The Establishment Clause question in the Trinity Lutheran case

[Michael Peabody]

One other question/concern:

If churches claim they are bring discriminated against in distribution of
state funds, are those churches free to facilities procured or enhanced by
those funds in a discriminatory manner by blocking access to others they
disagree with for purely religious reasons?

In other words (in a conceptual sense) would Trinity Lutheran Church be
required to permit same-sex weddings on the publicly funded recycled mulch
playground?
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RE: The Establishment Clause question in the Trinity Lutheran case

[Michael Peabody]

I understand that there may be some room to "play between the joints"
when it comes to the clauses in question, but in reviewing Trinity
Lutheran Church's petition to the Supreme Court, I keep banging my
head against the religious practice involving the playground that
falls into the gap between the Establishment Clause and the Free
Exercise Clause in the question presented before the Court.

The question before the Court is the following:

"Whether the exclusion of churches from an otherwise neutral and
secular aid program violates the Free Exercise and Equal Protection
Clauses when the state has no valid Establishment Clause concern."

Putting the Equal Protection segment aside for a moment and focusing
on the Free Exercise Clause part - I'm assuming that by "free
exercise" the church is asserting a right to, put it obviously,
exercise its religion and it is somehow being prevented by the state
from doing so.  Then I see the "no valid Establishment Clause concern"
meaning that it is somehow more secular than the "Free Exercise" part
of the question would seem to indicate.

I suspect that there is probably some kind of argument that these two
clauses referenced in its question are parallel tracks that never meet
in this case, but I can't help but wondering about this question:

***Is the church arguing that it has a religious practice that is
being infringed upon (its Free Exercise violated) that is in fact
secular (no Establishment Clause violation)?  Or are there "low level"
religious practices like having a playground "ministry" that don't
quite violate the Establishment Clause but do significantly affect the
Free Exercise of Religion?


Michael Peabody, Esq.
ReligiousLiberty.TV

(For what it's worth, I express some concern about the church's
petition and what it could mean on my blog at
http://religiousliberty.tv/7222.html  "Faustian Bargain: Supreme Court
to Decide Whether Taxpayers Must Pay for Church Playground Upgrade" )
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RE: The Establishment Clause question in the Trinity Lutheran case

[Volokh, Eugene]

   I’d prefer, generally speaking, a version of Justice Harlan’s 
view in Welsh and Walz is basically right:  The government should neither 
discriminate in favor of or against religion; if religious exemptions are 
given, they should also be given to comparable secular objectors.

I think the result in Hosanna-Tabor is largely right, but I think (not quite 
consistently the Court, I realize) that the best approach would have been to 
focus on a conclusion that similar rights would be available for secular groups 
as well, under the Free Speech Clause.  The KKK has to be free to choose its 
leaders based on race and religion; the Sierra Club has to be free to bar 
leaders from speaking out in ways that it views as anti-environmentalist, even 
when a state (such as my own California) categorically bars employers from 
setting up rules limiting their employees’ political activity.  I realize that 
Hosanna-Tabor provides more protection than cases such as Boy Scouts v. Dale, 
because it doesn’t require a showing that the employment law substantially 
burdens the institution’s speech.  If that is justifiable (and I think it 
probably is), it would simply because of the principle that the government may 
not decide the reasonableness of religious claims; inquiring what is the true 
reason for a religious institution’s dismissal of a ministerial employee would 
often risk violating that principle, so it may make sense to just categorically 
immunize employment decisions related to churches’ ministerial employees.

But I realize that the Court has not taken my view on this, see Hosanna-Tabor 
and Cutter v. Wilkinson.  The question then is what effect this should have on 
the general principle of no discrimination against religious people, practices, 
and institutions.  It seems to me that it shouldn’t.  That all religious groups 
get a rather modest special benefit in the form of a few constitutionally 
compelled exemptions (see Hosanna-Tabor) and that some religious people end up 
benefiting from religion-only exemption says quite little, I think, about the 
possible exclusion of religious people and institutions from the massive 
benefits offered by the modern welfare state, potentially ranging into the 
billions of dollars’ worth (e.g., when it comes to school choice funding 
programs).

The better analogy, I think, is to ask how we deal with the question here – 
funding.  Texas Monthly v. Bullock tells us that, given the Establishment 
Clause, the government can’t discriminate in favor of religious institutions 
when it comes to funding.  (That’s one reason I’m skeptical about the parsonage 
exemption, one of the few really religion-preferential tax exemptions.)  It 
seems to  me quite consistent with that to read the Lukumi / McDaniel principle 
broadly as barring government discrimination against religion, including when 
it comes to funding.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, January 17, 2016 5:19 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: The Establishment Clause question in the Trinity Lutheran case

An equal treatment theory also does not fit the "ministerial exception" 
constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I wonder 
if Eugene, and others who question the Trinity Lutheran Church outcome, think 
that unanimous decision is incorrect.

Sent from my iPhone

On Jan 17, 2016, at 5:33 PM, James Oleske 
<jole...@lclark.edu<mailto:jole...@lclark.edu>> wrote:
To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit 
legislative exemptions available to religion but not non-religion, or just 
legislative burdens placed on religion but not non-religion? If only the 
latter, is it really a maximalist equal treatment theory? If both the former 
and the latter, is it remotely reconcilable with either current doctrine or 
longstanding tradition allowing legislative accommodation of religion? See 
Cutter ("Religious accommodations ... need not 'come packaged with benefits to 
secular entities'").

- Jim

On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   I share Sandy’s skepticism about the “play in the joints” 
locution, but I wonder why equal treatment doesn’t make sense as a maximalist 
theory?

Consider Sandy’s auditoria hypothetical.  It’s hard to infer 
much based on it, I think, because it’s hard to imagine the government actually 
building auditoria for private organizations.  But let’s consider two more 
plausible versions:


1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
R

Re: The Establishment Clause question in the Trinity Lutheran case

[Alan E Brownstein]

I'm not about to suggest that Eugene's equal access arguments don't make sense. 
But I don't think his examples provide persuasive  support for an equal access 
rule either.


Example 1 is a designated public forum. As such, it is subject to equal access 
rules. But it is certainly not clear to me either for free speech purposes or 
religion clause purposes that the doctrinal rules applying to public forums 
apply to all government spending programs. I don't think there is any consensus 
as to how spending decisions that distinguish between religion and 
non-religious grantees or that draw a variety of other distinctions that might 
be characterized as content or viewpoint based should be reviewed. Rosenberger 
is a forum case and the extent to which it extends beyond a designated public 
forum remains unclear. Certainly there is abundant argument from both 
conservative and liberal jurists that challenge its extension to other spending 
settings.


Example 2 has more bite to it. But again, I think the question remains whether 
the generally accepted rule for tax-deductible contributions is to be extended 
to other subsidy programs such as those involving cash grants or anywhere else. 
If we consider the range of regulations and subsidies that might apply to the 
building of auditoriums by nonprofits, it seems clear that our constitutional 
traditions suggest a significant reluctance to allow government to directly 
subsidize churches (which are in effect auditoriums for religious assembly, 
expression and association) and a corresponding willingness to exempt churches 
from regulations applicable to secular institutions (certainly RLUIPA, for 
example,  involves regulatory discrimination in favor of churches). These 
traditions, I suggest, reflect some of the competing values represented by the 
two religion clauses. The problem, of course, is that these values can be 
extremely difficult to reconcile. It seems to me that the inclusion of houses 
of worship in the class of nonprofits that benefit from tax deductible 
donations is best understood as one of the arbitrary lines that we have drawn 
to accommodate both free exercise and establishment clause concerns. It is a 
policy compromise that is formally inconsistent with a ban that singles out and 
denies religious subsidies per se and also inconsistent with a generally 
permissive regime that allows for singling and accepting exemptions for 
religious institutions and activities from generally applicable laws. We can 
argue whether it is a good compromise or a bad compromise. But I don't think it 
supports extending an equality regime more generally to subsidies or religious 
exemptions for religious institutions.


Alan





From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Sunday, January 17, 2016 1:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: The Establishment Clause question in the Trinity Lutheran case


   I share Sandy’s skepticism about the “play in the joints” 
locution, but I wonder why equal treatment doesn’t make sense as a maximalist 
theory?



Consider Sandy’s auditoria hypothetical.  It’s hard to infer 
much based on it, I think, because it’s hard to imagine the government actually 
building auditoria for private organizations.  But let’s consider two more 
plausible versions:



1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
Rector.



2.   The government offers property tax exemptions for a wide range of 
nonprofits, and makes contributions to such nonprofits tax-deductible.  Thus, 
if a nonprofit is building an auditorium, it in effect gets a massive 
matching-grant subsidy from the government.  There’s nothing nonsensical, it 
seems to me, about churches being entitled to use this subsidy for building 
their churches.  Indeed, they get such a subsidy now, and it’s seen as 
constitutional.  See Walz.  And I think that, if some government decided to 
exclude churches from such subsidies (while making them available to a vast 
range of comparable nonprofits), that would indeed violate the Free Exercise 
Clause.



Now one can argue that, as a matter of history, police, or what have you, the 
Free Exercise Clause should not be read as mandating equal treatment for 
religious observers in general, as to funding, as to some kinds of funding, or 
what have you.  But I just don’t see why the equal access rule wouldn’t “make[] 
sense.”



Eugene




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Re: The Establishment Clause question in the Trinity Lutheran case

[Levinson, Sanford V]

Shouldn't we admit that "play in the joints" is simply a euphemism for judicial 
balancing between the competing notions of no establishment, on the one hand, 
and free exercise+equality on the other. Neither makes sense as maximalist 
theory. The former would prohibit police protection, the latter would require 
the state to build churches if it auditoria for the people to use as gathering 
places to discuss important issues. So we rely on Rehnquist's and his 
successors' hunches as to where one should draw the line. We delude ourselves 
in believing that legal doctrine can work itself pure in this--or, for that 
matter, any other significant--area. "The life of the law is experience, not 
logic."

The problem is that it is awkward for well-paid law professors to teach their 
students that law often comes down to the idiosyncratic views of the median 
justices and that it is basically foolish to believe there are true doctrinal 
rationales that can predict future decisions.

Sandy

Sent from my iPhone

On Jan 17, 2016, at 7:45 AM, Steven Jamar 
> wrote:

It seems to me that the play-in-the-joints theory and providing accommodations 
between exercise and establishment shoiuld win out in this instance thereby 
upholding the Missouri Constitutional ban on direct and indirect financial 
support for religious organizations.

A ruling that pushes the neutrality principle this far as to prohibit states 
from making these sorts of choices and judgments seems likely to further make a 
hash of the problem rather than simplifying or clarifying things.  A rule that 
allows for such subsidy of religion by the state while allowing states not to 
so subsidize religions in these ways seems to be what the voucher cases seem to 
indicate as the direction the law is going.

But as for me, all bets are off on this one as to result and as to theories 
selected from the grab-bag the court has created over the decades.

Steve

--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

"The two most important days in your life are the day you are born and the day 
you find out why."
Mark Twain




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RE: The Establishment Clause question in the Trinity Lutheran case

[Volokh, Eugene]

   I share Sandy's skepticism about the "play in the joints" 
locution, but I wonder why equal treatment doesn't make sense as a maximalist 
theory?

Consider Sandy's auditoria hypothetical.  It's hard to infer 
much based on it, I think, because it's hard to imagine the government actually 
building auditoria for private organizations.  But let's consider two more 
plausible versions:


1.   The government builds a city auditorium, not for its own speech but to 
enable private organizations to speak.  Churches would indeed have a First 
Amendment right to equal access to such an auditorium.  See Rosenberger v. 
Rector.



2.   The government offers property tax exemptions for a wide range of 
nonprofits, and makes contributions to such nonprofits tax-deductible.  Thus, 
if a nonprofit is building an auditorium, it in effect gets a massive 
matching-grant subsidy from the government.  There's nothing nonsensical, it 
seems to me, about churches being entitled to use this subsidy for building 
their churches.  Indeed, they get such a subsidy now, and it's seen as 
constitutional.  See Walz.  And I think that, if some government decided to 
exclude churches from such subsidies (while making them available to a vast 
range of comparable nonprofits), that would indeed violate the Free Exercise 
Clause.


Now one can argue that, as a matter of history, police, or what have you, the 
Free Exercise Clause should not be read as mandating equal treatment for 
religious observers in general, as to funding, as to some kinds of funding, or 
what have you.  But I just don't see why the equal access rule wouldn't "make[] 
sense."

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, January 17, 2016 9:58 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: The Establishment Clause question in the Trinity Lutheran case

Shouldn't we admit that "play in the joints" is simply a euphemism for judicial 
balancing between the competing notions of no establishment, on the one hand, 
and free exercise+equality on the other. Neither makes sense as maximalist 
theory. The former would prohibit police protection, the latter would require 
the state to build churches if it auditoria for the people to use as gathering 
places to discuss important issues. So we rely on Rehnquist's and his 
successors' hunches as to where one should draw the line. We delude ourselves 
in believing that legal doctrine can work itself pure in this--or, for that 
matter, any other significant--area. "The life of the law is experience, not 
logic."

The problem is that it is awkward for well-paid law professors to teach their 
students that law often comes down to the idiosyncratic views of the median 
justices and that it is basically foolish to believe there are true doctrinal 
rationales that can predict future decisions.

Sandy

Sent from my iPhone

On Jan 17, 2016, at 7:45 AM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:
It seems to me that the play-in-the-joints theory and providing accommodations 
between exercise and establishment shoiuld win out in this instance thereby 
upholding the Missouri Constitutional ban on direct and indirect financial 
support for religious organizations.

A ruling that pushes the neutrality principle this far as to prohibit states 
from making these sorts of choices and judgments seems likely to further make a 
hash of the problem rather than simplifying or clarifying things.  A rule that 
allows for such subsidy of religion by the state while allowing states not to 
so subsidize religions in these ways seems to be what the voucher cases seem to 
indicate as the direction the law is going.

But as for me, all bets are off on this one as to result and as to theories 
selected from the grab-bag the court has created over the decades.

Steve

--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

"The two most important days in your life are the day you are born and the day 
you find out why."
Mark Twain



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Re: The Establishment Clause question in the Trinity Lutheran case

[James Oleske]

To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit
legislative exemptions available to religion but not non-religion, or just
legislative burdens placed on religion but not non-religion? If only the
latter, is it really a maximalist equal treatment theory? If both the
former and the latter, is it remotely reconcilable with either current
doctrine or longstanding tradition allowing legislative accommodation of
religion? See Cutter ("Religious accommodations ... need not 'come packaged
with benefits to secular entities'").

- Jim

On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>I share Sandy’s skepticism about the “play in the joints”
> locution, but I wonder why equal treatment doesn’t make sense as a
> maximalist theory?
>
>
>
> Consider Sandy’s auditoria hypothetical.  It’s hard to
> infer much based on it, I think, because it’s hard to imagine the
> government actually building auditoria for private organizations.  But
> let’s consider two more plausible versions:
>
>
>
> 1.   The government builds a city auditorium, not for its own speech
> but to enable private organizations to speak.  Churches would indeed have a
> First Amendment right to equal access to such an auditorium.  See
> Rosenberger v. Rector.
>
>
>
> 2.   The government offers property tax exemptions for a wide range
> of nonprofits, and makes contributions to such nonprofits tax-deductible.
> Thus, if a nonprofit is building an auditorium, it in effect gets a massive
> matching-grant subsidy from the government.  There’s nothing nonsensical,
> it seems to me, about churches being entitled to use this subsidy for
> building their churches.  Indeed, they get such a subsidy now, and it’s
> seen as constitutional.  See Walz.  And I think that, if some government
> decided to exclude churches from such subsidies (while making them
> available to a vast range of comparable nonprofits), that would indeed
> violate the Free Exercise Clause.
>
>
>
> Now one can argue that, as a matter of history, police, or what have you,
> the Free Exercise Clause should not be read as mandating equal treatment
> for religious observers in general, as to funding, as to some kinds of
> funding, or what have you.  But I just don’t see why the equal access rule
> wouldn’t “make[] sense.”
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V
> *Sent:* Sunday, January 17, 2016 9:58 AM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: The Establishment Clause question in the Trinity Lutheran
> case
>
>
>
> Shouldn't we admit that "play in the joints" is simply a euphemism for
> judicial balancing between the competing notions of no establishment, on
> the one hand, and free exercise+equality on the other. Neither makes sense
> as maximalist theory. The former would prohibit police protection, the
> latter would require the state to build churches if it auditoria for the
> people to use as gathering places to discuss important issues. So we rely
> on Rehnquist's and his successors' hunches as to where one should draw the
> line. We delude ourselves in believing that legal doctrine can work itself
> pure in this--or, for that matter, any other significant--area. "The life
> of the law is experience, not logic."
>
>
>
> The problem is that it is awkward for well-paid law professors to teach
> their students that law often comes down to the idiosyncratic views of the
> median justices and that it is basically foolish to believe there are true
> doctrinal rationales that can predict future decisions.
>
>
>
> Sandy
>
> Sent from my iPhone
>
>
>
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Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

I agree that play in the joints is a way to describe how to handle the problem 
of those situations where general principles of non-establsihment run into 
general principles of free exerice.  However, I do not think that maximalist 
equality or free exercise+equality captures the range of free exercise 
interests and principles at stake.  

There are not hard edged rules in some hard cases.  They simply cannot be 
decided syllogistically  or even on a principled balance of principles.  Some 
things are just ad hoc and highly fact dependent and based on judgments the 
premises for which are not always fully articulated or even articulable.  

I think both Rosenberger and CLS are this type of case.  There are lots of 
words there, but at the end of the day, neither one is fully defensible on any 
particular principle or set of principles that anyone would apply rigorously 
across the board.

Steve

> On Jan 17, 2016, at 12:58 PM, Levinson, Sanford V  
> wrote:
> 
> Shouldn't we admit that "play in the joints" is simply a euphemism for 
> judicial balancing between the competing notions of no establishment, on the 
> one hand, and free exercise+equality on the other. Neither makes sense as 
> maximalist theory. The former would prohibit police protection, the latter 
> would require the state to build churches if it auditoria for the people to 
> use as gathering places to discuss important issues. So we rely on 
> Rehnquist's and his successors' hunches as to where one should draw the line. 
> We delude ourselves in believing that legal doctrine can work itself pure in 
> this--or, for that matter, any other significant--area. "The life of the law 
> is experience, not logic."
> 
> The problem is that it is awkward for well-paid law professors to teach their 
> students that law often comes down to the idiosyncratic views of the median 
> justices and that it is basically foolish to believe there are true doctrinal 
> rationales that can predict future decisions. 
> 
> Sandy
> 
> Sent from my iPhone
> 
> On Jan 17, 2016, at 7:45 AM, Steven Jamar  > wrote:
> 
>> It seems to me that the play-in-the-joints theory and providing 
>> accommodations between exercise and establishment shoiuld win out in this 
>> instance thereby upholding the Missouri Constitutional ban on direct and 
>> indirect financial support for religious organizations. 
>> 
>> A ruling that pushes the neutrality principle this far as to prohibit states 
>> from making these sorts of choices and judgments seems likely to further 
>> make a hash of the problem rather than simplifying or clarifying things.  A 
>> rule that allows for such subsidy of religion by the state while allowing 
>> states not to so subsidize religions in these ways seems to be what the 
>> voucher cases seem to indicate as the direction the law is going.  
>> 
>> But as for me, all bets are off on this one as to result and as to theories 
>> selected from the grab-bag the court has created over the decades.
>> 
>> Steve
>> 
>> -- 
>> Prof. Steven D. Jamar   
>> Howard University School of Law 
>> vox:  202-806-8017  
>> fax:  202-806-8567
>> http://sdjlaw.org 
>> 
>> “The two most important days in your life are the day you are born and the 
>> day you find out why.” 
>> Mark Twain
>> 
>> 

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"A word is not a crystal, transparent and unchanged, it is the skin of a living 
thought and may vary greatly in color and content according to the 
circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)







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Re: The Establishment Clause question in the Trinity Lutheran case

[Ira Lupu]

An equal treatment theory also does not fit the "ministerial exception" 
constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I wonder 
if Eugene, and others who question the Trinity Lutheran Church outcome, think 
that unanimous decision is incorrect.

Sent from my iPhone

> On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu> wrote:
> 
> To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit 
> legislative exemptions available to religion but not non-religion, or just 
> legislative burdens placed on religion but not non-religion? If only the 
> latter, is it really a maximalist equal treatment theory? If both the former 
> and the latter, is it remotely reconcilable with either current doctrine or 
> longstanding tradition allowing legislative accommodation of religion? See 
> Cutter ("Religious accommodations ... need not 'come packaged with benefits 
> to secular entities'"). 
> 
> - Jim
> 
>> On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
>>I share Sandy’s skepticism about the “play in the joints” 
>> locution, but I wonder why equal treatment doesn’t make sense as a 
>> maximalist theory?
>> 
>>  
>> 
>> Consider Sandy’s auditoria hypothetical.  It’s hard to infer 
>> much based on it, I think, because it’s hard to imagine the government 
>> actually building auditoria for private organizations.  But let’s consider 
>> two more plausible versions:
>> 
>>  
>> 
>> 1.   The government builds a city auditorium, not for its own speech but 
>> to enable private organizations to speak.  Churches would indeed have a 
>> First Amendment right to equal access to such an auditorium.  See 
>> Rosenberger v. Rector.
>> 
>>  
>> 
>> 2.   The government offers property tax exemptions for a wide range of 
>> nonprofits, and makes contributions to such nonprofits tax-deductible.  
>> Thus, if a nonprofit is building an auditorium, it in effect gets a massive 
>> matching-grant subsidy from the government.  There’s nothing nonsensical, it 
>> seems to me, about churches being entitled to use this subsidy for building 
>> their churches.  Indeed, they get such a subsidy now, and it’s seen as 
>> constitutional.  See Walz.  And I think that, if some government decided to 
>> exclude churches from such subsidies (while making them available to a vast 
>> range of comparable nonprofits), that would indeed violate the Free Exercise 
>>  Clause.
>> 
>>  
>> 
>> Now one can argue that, as a matter of history, police, or what have you, 
>> the Free Exercise Clause should not be read as mandating equal treatment for 
>> religious observers in general, as to funding, as to some kinds of funding, 
>> or what have you.  But I just don’t see why the equal access rule wouldn’t 
>> “make[] sense.”
>> 
>>  
>> 
>>     Eugene
>> 
>>  
>> 
>> From: religionlaw-boun...@lists.ucla.edu 
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
>> Sent: Sunday, January 17, 2016 9:58 AM
>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
>> Subject: Re: The Establishment Clause question in the Trinity Lutheran case
>> 
>>  
>> 
>> Shouldn't we admit that "play in the joints" is simply a euphemism for 
>> judicial balancing between the competing notions of no establishment, on the 
>> one hand, and free exercise+equality on the other. Neither makes sense as 
>> maximalist theory. The former would prohibit police protection, the latter 
>> would require the state to build churches if it auditoria for the people to 
>> use as gathering places to discuss important issues. So we rely on 
>> Rehnquist's and his successors' hunches as to where one should draw the 
>> line. We delude ourselves in believing that legal doctrine can work itself 
>> pure in this--or, for that matter, any other significant--area. "The life of 
>> the law is experience, not logic."
>> 
>>  
>> 
>> The problem is that it is awkward for well-paid law professors to teach 
>> their students that law often comes down to the idiosyncratic views of the 
>> median justices and that it is basically foolish to believe there are true 
>> doctrinal rationales that can predict future decisions. 
>> 
>>  
>> 
>> Sandy
>> 
>> Sent from my iPhone
>> 
> ___
> To post, send message to Religionl

Re: The Establishment Clause question in the Trinity Lutheran case

[Steven Jamar]

It seems to me that the play-in-the-joints theory and providing accommodations 
between exercise and establishment shoiuld win out in this instance thereby 
upholding the Missouri Constitutional ban on direct and indirect financial 
support for religious organizations. 

A ruling that pushes the neutrality principle this far as to prohibit states 
from making these sorts of choices and judgments seems likely to further make a 
hash of the problem rather than simplifying or clarifying things.  A rule that 
allows for such subsidy of religion by the state while allowing states not to 
so subsidize religions in these ways seems to be what the voucher cases seem to 
indicate as the direction the law is going.  

But as for me, all bets are off on this one as to result and as to theories 
selected from the grab-bag the court has created over the decades.

Steve

-- 
Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org

“The two most important days in your life are the day you are born and the day 
you find out why.” 
Mark Twain




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Re: The Establishment Clause question in the Trinity Lutheran case

[Scarberry, Mark]

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

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

Mark

Mark S. Scarberry
Pepperdine University School of Law

P.S. Condolences to Green Bay fans.

Sent from my iPad

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

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

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

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



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The Establishment Clause question in the Trinity Lutheran case

[Marty Lederman]

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

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

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




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

> I concur with most of what Chip says, especially his important point that
> the Court will not have to resolve the SOC/CT split in *Mitchell v. Helms*
> about the permissibility of diversion of the aid to religious activities
> (although of course the majority might choose to take the opportunity to do
> so).
>
> But this case is importantly different from *Mitchell* in two ways:  it
> involves (i) provision of direct *money *grants (ii) to churches, as
> such.  It thus implicates SOC's insistence that there are "special
> dangers associated with direct money grants to religious institutions,"
> which she thought has traditionally been "based on more than just
> diversion. *In fact, the most important reason for according special
> treatment to direct money grants is that this form of aid falls
> precariously close to the original object of the Establishment Clause's
> prohibition*."  Of course, she never did explain just what she meant by
> that, although presumably she was referring to some sort of entanglement
> concern about the establishment of financial relationships between
> (literally) church and state.
>
> Whatever O'Connor meant, I'd be very surprised if there are five (or
> perhaps even three or four) current Justices who agree with SOC that there
> are special problems with aid to churches, as such, or who think that
> financial aid is constitutionally different from other sorts of aid, in a
> way that establishes a *categorical *constitutional
> disability--especially where, as here, the money is provided *only *as
> direct dollar-for-dollar reimbursement "for the purchase, vendor
> installation and delivery of the playground scrap tire surface material."
>
> All of which is to say that *Committee for Public Educ. v. Regan *might
> get a good deal of attention here.
>
> On Fri, Jan 15, 2016 at 10:17 PM, Ira Lupu  wrote:
>
>> Responding to Marty:  [If it reversed], the Court would NOT necessarily
>> be saying "that the Establishment Clause does not prohibit direct
>> funding to churches, at least where (i) the criteria for funding are fairly
>> rote and nondiscretionary (as Eugene suggests they are here), and (ii) the
>> principal uses of the $$ are not for activities that involve "inherently
>> religious" matters."  {Sorry for all those "nots.")  The State of Missouri
>> did not defend its denial of the application on federal Establishment
>> Clause grounds.  It defended on state constitutional law grounds, and it
>> argued that the state was free to have a broader ban on funding than the
>> Establishment Clause requires.  That argument is about the scope of the
>> "play in the joints' between the Religion Clauses.
>>
>> Perhaps one cannot determine that scope without fixing the boundaries of
>> the Establishment Clause.  That would bring Marty's concerns into play.
>> Under current Establishment Clause law re: direct funding, however, the
>> SOC-SB concurrence in Mitchell v. Helms represents the controlling law.
>> Under that opinion, direct aid to religious entities must have adequate
>> safeguards against diversion to religious use.  There is absolutely no
>> reason for SCOTUS in this case to resolve the