Nutshell

[Berg, Thomas C.]

Dear List Members,

After a decade or so, I am now doing a new edition (the 3rd) of The State and 
Religion in a Nutshell for West. I would welcome comments from any list members 
who have read the book or have received useful student comments on it, and have 
been itching to tell me where I'm wrong (or even right!). I've tried to make 
the past editions offer doctrinal basics, some historical and theoretical 
frameworks, and a fair account of the major positions on debated issues. 
Comments from you would help me continue those efforts, because this list is a 
continued source of information and ideas for me.

I will work on this in earnest in January and February, so comments would be of 
most value if I received them in the next few weeks. Thanks very much,

Tom

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu
SSRN: http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com
-


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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  
on behalf of Volokh, Eugene 
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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Please 

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: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene"
> >
> To: Law & Religion issues for Law Academics
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religious instruction on the playground.
>
> And a building that's more earthquake safe, or that has asbestos removed, or
> that has a security guard, or lacks dangerous mosquitoes outside, actually is
> slightly more attractive as space for worship and religious instruction:  Some
> people might be more willing to send their kids to a school or a church that's
> earthquake-safe, asbestos-remediated, 

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

And recruitment of new members.


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Alan E Brownstein

Date: Sun, Jan 17, 2016 2:38 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:Re: Excluding religious institutions from public safety benefits


It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark"  
> wrote:
>
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
>
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
>
>   Eugene
>
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene" >
> To: Law & Religion issues for Law Academics 
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
>
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
>
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes – indeed, I’d think that’s 
> quite common – but a church or a school definitely would use the safer 

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Indeed they are; but does it follow that the government should be 
required to, or even allowed to, refuse to offer health and safety grants on an 
evenhanded basis to such preschools?  Again, asbestos remediation, earthquake 
retrofitting, mosquito abatement, and protection against criminal attack all in 
some measure improve the preschool, and make it more appealing to parents -- at 
least as much, I think, as playground resurfacing would.

Eugene

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, January 17, 2016 12:38 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark"  
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I suppose it's possible, but it doesn't seem that likely.  From 
> what I've seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like - not the optimal place for an "'old 
> time religion' tent revival" or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don't use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they're standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> 
> Subject: Re: Excluding religious institutions from public safety 
> benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law 
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of 
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene" 
> >
> To: Law & Religion issues for Law Academics 
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety 
> benefits
> 
>   I'm not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don't care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that's more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that's earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school 

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> Subject: RE: Excluding religious institutions from public safety benefits
> 
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
> 
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
> 
>Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene"
> >
> To: Law & Religion issues for Law Academics
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religious instruction on the playground.
> 
> And a building that's more earthquake safe, or that has asbestos removed, or
> that has a security guard, or lacks dangerous mosquitoes outside, actually is
> slightly more attractive as space for worship and religious instruction:  Some
> people might be more willing to send their kids to a school or a church that's
> earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to
> a church or school that seems dangerous.  The effect won't be vast, but again
> it's not like the extra benefit of a rubberized surface for worship and 
> religious
> instruction is vast, either.
> 
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free
> church or religious school building surely will be used for religious 
> purposes,
> right?  One can imagine a religious school or preschool that doesn't use its
> playground for religious purposes - indeed, I'd think that's quite common - 
> but a
> church or a school definitely would use the safer buildings for religious 
> 

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.


However, I think a partial answer  would be the following:


1:  the government provides all sorts of "external" services to all people in 
society, police, fire, roads, sewers, trash pick up, snow removal, etc.  
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams, 
Kingdom Halls, etc). get these like everyone else.


2:  Not for profit entities get all sorts of tax breaks, and religious 
institutions fit that bill.  If the religious institutions are running 
businesses to support their activities I would not give them the same tax 
breaks for those businesses.  So, if the church also owns an apartment complex, 
and the profit from the apartments goes to support the church, I would think 
the apartment complex as a business should pay real estate and other taxes just 
like anyone else. And along the same line, religious buildings should pay use 
taxes for water, sewers, etc.


3:  assessing fair market value for a church is impossible and not taxing 
religious buildings fits with other non-profits -- museums, schools, etc.  (for 
example to tax Trinity Church in lower Manhattan at fair market value would put 
out of business -- the power to tax in this case would be the power to destroy, 
to quote Marshall)


4:  The government should not be in the business of rebuilding churches.  It 
the church has asbestos issues it needs to fix them.  It the church school 
can't fix it then the church school may have to close.  Otherwise, we have tax 
dollars fixing religious buildings, paying to replace religious symbols, 
alters, etc. etc.  That is not good for churches or the state.


5:  I never suggested removing tax deductibility.  It did not exist in 
Madison's time, but he never suggested taxing churches.  For tax purposes, 
churches are like other non-profits.  Any alternative, would put them out of 
business.


6: Security guards pose an interesting question.  Most private businesses pay 
for their own "internal" security but the police can guard a building.  Have a 
police car parked out front; but have private security inside of private 
institutions.  It is not a hard concept.  My Temple in Tulsa did it every 
Friday night.  My Temple in Albany did not.  Either way, it was private.   Some 
churches provide their own security from members.





*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Sunday, January 17, 2016 4:28 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits


So if there is a gang violence problem at schools, and the 
government gives grants to schools with the most serious problems to hire a 
security guard, the government may – indeed, it sounds like “must” – refuse to 
do the same for religious schools?



What about tax deductibility of contributions, and the property 
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock, 
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as 
involving a form of subsidy?  May (and must) the government refuse to extend 
these benefits, available to a vast range of secular nonprofits, to religious 
institutions?



What about in-kind benefits, such as free or subsidized sewer 
access, trash pickup, fire protection, or police protection?  May (and must) 
the government refuse to provide equal access to such things to churches and 
religious schools?



If it is really objectionable to take one penny of a citizen’s 
money to support any church or religion even through an evenhanded benefit 
program, then wouldn’t the government have to exclude religion from all these 
benefits?  Conversely, if the government can offer such benefits, it seems to 
me that this is because the prohibition is on 

RE: Excluding religious institutions from public safety benefits

[Graber, Mark]

For the record, my reform temple regularly held religious activities in the 
playground.  A playground is a very good place for making religious points for 
6 and 7 year olds.

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 12:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits

   I suppose it’s possible, but it doesn’t seem that likely.  From 
what I’ve seen, the springy recycled-tire surface tends to be used by swing 
sets, monkey bars, slides, and the like – not the optimal place for an “’old 
time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
field, a baseball diamond, or tennis courts might be a better place, but I 
think they generally don’t use rubber surfaces (since that would throw off the 
play of the game).

   But in any event, if such a service is held on a resurfaced 
playground, the resurfacing would have done little to help the service; the 
service can be held on all kinds of surfaces.  Resurfacing is important when 
kids are running, climbing, and tumbling, not when they’re standing still.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





Call
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From: "Volokh, Eugene" >
To: Law & Religion issues for Law Academics 
>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all 

Re: Excluding religious institutions from public safety benefits

[Alan E Brownstein]

It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark"  
> wrote:
> 
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
> 
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
> 
>   Eugene
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
> 
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
> 
> 
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
> 
> 
> 
> 
> 
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
> 
> 
> 
> From: "Volokh, Eugene" >
> To: Law & Religion issues for Law Academics 
> >
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
> 
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
> 
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
> 
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes – indeed, I’d think that’s 
> quite common – but a church or a school definitely would use the safer 
> buildings for religious purposes.  Chip, under your proposal, wouldn’t a 
> state therefore be equally free to say that “play in the joints” lets it deny 
> all those safety grants (otherwise generally available to all other 
> institutions) to religious 

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 
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 
> 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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Please note that 

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  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 
> *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: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

So if there is a gang violence problem at schools, and the 
government gives grants to schools with the most serious problems to hire a 
security guard, the government may - indeed, it sounds like "must" - refuse to 
do the same for religious schools?

What about tax deductibility of contributions, and the property 
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock, 
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as 
involving a form of subsidy?  May (and must) the government refuse to extend 
these benefits, available to a vast range of secular nonprofits, to religious 
institutions?

What about in-kind benefits, such as free or subsidized sewer 
access, trash pickup, fire protection, or police protection?  May (and must) 
the government refuse to provide equal access to such things to churches and 
religious schools?

If it is really objectionable to take one penny of a citizen's 
money to support any church or religion even through an evenhanded benefit 
program, then wouldn't the government have to exclude religion from all these 
benefits?  Conversely, if the government can offer such benefits, it seems to 
me that this is because the prohibition is on taking money to support religion 
because of its religiosity, rather than to offer religious people and 
institutions equal access to broadly available benefits.

Eugene

From: Finkelman, Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene ; Law & Religion issues for Law 
Academics 
Subject: Re: Excluding religious institutions from public safety benefits


Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?



Sent from my T-Mobile 4G LTE device



-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, 
> Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> >
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> 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 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> >
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details 

Re: Excluding religious institutions from public safety benefits

[Scarberry, Mark]

The petition for cert says the grant could only be used to pay for scrap rubber 
and delivery costs-- not even for site prep or any kind of labor. There is no 
need to audit the church's finances but only to trace these particular funds. 
It would be easy to structure this as a draft payable to the scrap rubber 
seller. Again, it is functionally the provision of scrap rubber, not funds.

Mark Scarberry

Sent from my iPhone

On Jan 17, 2016, at 2:51 PM, Patrick Gillen 
> wrote:

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.

[snip]

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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: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

I am not sure what part of my posting bothered Mr. Gillen (Prof?  He does not 
tell us who he is) so much, whether it was my attempt a little humor (to 
channel Madison) or my rather long and hardly facile attempt to distinguish 
between tax exemptions for churches and tax money going to churches.  My 
reading of Madison (and I have read a LOT of Madison) is that he had no problem 
with tax exemption for churches precisely because he was not anti-religion (nor 
am I) and realized that taxing churches could destroy them.  He had seen 
massive persecution in Va. of Baptists, Quakers, and other dissenters, and knew 
that if the political leaders could tax churches it was reasonable to expect 
economic persecution.  For the same reasons he opposed the anti-Catholic and 
anti-Semitic tests for office holding in the contemporary state constitutions.


There were no such things as tax deduction or tax exemptions or deductions for 
charitable giving in Madison's time, so we can only guess that he would likely 
have approved of allowing for deductions for charitable giving (if there were 
such a tax system) and accepted that churches are charitable institutions.  But 
again, this is only an assumption.  And perhaps I am wrong and he would have 
seen such deductions as impermissible government support for religious 
institutions.  Certainly that is a reasonable argument.  Given the complexity 
of our world, however, it is hard to imagine treating a religious charity in a 
different way than a secular charity (for example, allowing a tax deduction for 
a donation to George Washington University but not to Georgetown University).


What we do know is that Madison emphatically opposed the government giving 
money, land, goods, or anything else of value to churches and believed that not 
a penny  (and that is his language) of taxpayer money should be handed over to 
churches.


That would include scrap rubber.  On this I stand with our 4th president, and I 
hope Mr. Gillen does not think this is facile.


I realize there are complications here and I tried to address some of them in 
my previous post.  But I have said enough on this for the moment.



*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Patrick Gillen 
Sent: Sunday, January 17, 2016 5:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.


However, I think a partial answer  would be the following:


1:  the government provides all sorts of "external" services to all people in 
society, police, fire, roads, sewers, trash pick up, snow removal, etc.  
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams, 
Kingdom Halls, etc). get these like everyone else.


2:  Not for profit entities get all sorts of tax breaks, and religious 
institutions fit that bill.  If the religious institutions are running 
businesses to support their activities I would not give them the same tax 
breaks for those businesses.  So, if the church also owns an apartment complex, 
and the profit from the apartments goes to support the church, I would think 
the apartment complex as a business should pay real estate and other taxes just 
like anyone else. And along the same line, religious buildings should pay use 
taxes for water, sewers, etc.


3:  assessing fair market 

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  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  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 
>> 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 Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
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To subscribe, unsubscribe, change options, or get password, see 

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




___
To post, send message to Religionlaw@lists.ucla.edu
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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: Excluding religious institutions from public safety benefits

[Paul Finkelman]

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.
 
**
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof 
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK  S7N 5A6   
canadapaul.finkel...@yahoo.com
c) 518.605.0296
andSeniorFellowDemocracy, Citizenship and Constitutionalism Program
Universityof Pennsylvania




CallSend SMSCall from mobileAdd to SkypeYou'll need Skype CreditFree via Skype
 

  From: "Volokh, Eugene" 
 To: Law & Religion issues for Law Academics  
 Sent: Saturday, January 16, 2016 6:25 PM
 Subject: RE: Excluding religious institutions from public safety benefits
   
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span.yiv7323085659hoenzb {}#yiv7323085659 span.yiv7323085659EmailStyle18 
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none;}#yiv7323085659 .yiv7323085659MsoChpDefault {} _filtered #yiv7323085659 
{margin:1.0in 1.0in 1.0in 1.0in;}#yiv7323085659 div.yiv7323085659WordSection1 
{}#yiv7323085659    I’m not sure how upgrading the playground will 
make it materially more usable as space for worship and religious instruction.  
Few institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaceswhen using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.    And a building that’s more earthquake safe, 
or that has asbestos removed, or that has a security guard, or lacks dangerous 
mosquitoes outside, actually is slightly more attractive as space for worship 
and religious instruction:  Some people might be more willing to send their 
kids to a school or a church that’s earthquake-safe, asbestos-remediated, 
mosquito-free, or well-guarded than to a church or school that seems dangerous. 
 The effect won’t be vast, but again it’s not like the extra benefit of a 
rubberized surface for worship and religious instruction is vast, either.    
Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surelywill be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?    Eugene    Chip writes:    From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits    
Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:    1.  Eugene's examples all involve health and safety. None can be 
diverted to religious use; all make religious use, and all other uses of the 
property, healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to 
schools, public and private, in poor areas.  The aid included things like 
computers, books, AV equipment, etc.  Plurality said that neutral 
distributional criteria (public and private schools, no sectarian 
discrimination) is all you need.  Dissent said divertibility of aid to 
religious use is fatal.  Controlling opinion, SOC-SB, said the Establishment 
Clause concern is actual diversion, not divertibility, so the program is OK 
because it contains adequate (and non-entangling) safeguards against religious 
use. That is the Establishment Clause right now.    Trinity Lutheran Church 
seems to me to fall between Eugene's examples and Mitchell.  The playground 
will be safer 

RE: Excluding religious institutions from public safety benefits

[Volokh, Eugene]

   I suppose it’s possible, but it doesn’t seem that likely.  From 
what I’ve seen, the springy recycled-tire surface tends to be used by swing 
sets, monkey bars, slides, and the like – not the optimal place for an “’old 
time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
field, a baseball diamond, or tennis courts might be a better place, but I 
think they generally don’t use rubber surfaces (since that would throw off the 
play of the game).

   But in any event, if such a service is held on a resurfaced 
playground, the resurfacing would have done little to help the service; the 
service can be held on all kinds of surfaces.  Resurfacing is important when 
kids are running, climbing, and tumbling, not when they’re standing still.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, January 17, 2016 9:22 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits

without getting too far into the details here; there are many times when 
religions hold outdoor services, most obviously and Easter Sunrise Service.  A 
playground might be just the place for that, or for an "old time religion" tent 
revival.


**
Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law
College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon, SK  S7N 5A6
CANADA
paul.finkel...@yahoo.com
c) 518.605.0296
and
Senior Fellow
Democracy, Citizenship and Constitutionalism Program
University of Pennsylvania





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From: "Volokh, Eugene" >
To: Law & Religion issues for Law Academics 
>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits

   I’m not sure how upgrading the playground will make it 
materially more usable as space for worship and religious instruction.  Few 
institutions, I expect, want to do worship and religious instruction on 
playgrounds, rather than more familiar places.  But those that do probably 
don’t care about rubber vs. gravel surfaces when using a space for worship and 
religious instruction, which rarely involves tumbling and running around.  
Indeed, the improved surface is important for everyday playground physical 
safety, and not really important for the very rare worship/religious 
instruction on the playground.

And a building that’s more earthquake safe, or that has asbestos removed, or 
that has a security guard, or lacks dangerous mosquitoes outside, actually is 
slightly more attractive as space for worship and religious instruction:  Some 
people might be more willing to send their kids to a school or a church that’s 
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a 
church or school that seems dangerous.  The effect won’t be vast, but again 
it’s not like the extra benefit of a rubberized surface for worship and 
religious instruction is vast, either.

Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
church or religious school building surely will be used for religious purposes, 
right?  One can imagine a religious school or preschool that doesn’t use its 
playground for religious purposes – indeed, I’d think that’s quite common – but 
a church or a school definitely would use the safer buildings for religious 
purposes.  Chip, under your proposal, wouldn’t a state therefore be equally 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.