Posted by Eugene Volokh:
Sixth Circuit Upholds Participation of Churches in an Evenhanded Urban
Beautification/Refurbishment Program:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243533300
[1]American Atheists v. City of Detroit involves a program that
�reimburse[d] up to 50% of the costs of refurbishing the exteriors of
downtown buildings and parking lots� �in a discrete section of
downtown Detroit,� and �covered all property in that area, including
property owned by religious organizations.� The program was apparently
prompted by the city�s desire to put on a good face for the
then-upcoming 2006 Super Bowl, which was to be held in a city-built
stadium.
�Of the $11.5 million allocated for completed and authorized projects,
6.4% ... went to [three] churches� in the area, but the court found
that this was not a problem, chiefly because of the evenhanded nature
of the funding program. Seems exactly right to me, as a matter of
basic principles, namely that [2]equal treatment is not establishment.
Given the messy state of current Establishment Clause law (compare
Mitchell v. Helms with Rosenberger v. Rector and Zelman v.
Simmons-Harris), the result is not doctrinally obvious, but I think
the panel makes a very good argument that it is correct even under the
splintered Mitchell decision.
And as the court put it,
Excluding the churches from taking part in the program, by
contrast, would send a far stronger message [than the alleged
message of endorsement of religion sent by the inclusion of the
churches -EV] -- a message not of endorsement but of disapproval.
It may be that the First Amendment did not compel Detroit to
include religious groups in this downtown revitalization project,
cf. Locke v. Davey, 540 U.S. 712, 719�21 (2004), but neither did it
prohibit Detroit from including these groups in the project --
either to enhance the success of the program (by revitalizing all
of downtown) or to avoid sending a message of hostility to people
of faith.
I [3]agree with the dissent in Locke v. Davey, and think that
discriminatory exclusion of religious people or institutions from
generally available funding programs should be seen as
unconstitutional. But even given the Court's contrary ruling in Locke,
the Sixth Circuit's logic in the paragraph I quoted (and in the rest
of the opinion) strikes me as quite right.
I should note, of course, that there are lots of good libertarian
reasons for opposing government construction of stadiums, or
government funding for refurbishing private buildings and parking
lots. But if such funding is to take place, it's not necessary (and in
my view, not proper) to discriminatorily exclude religious
institutions from such evenhanded funding programs.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/09a0188p-06.pdf
2. http://www.law.ucla.edu/volokh/equal.htm
3. http://www.law.ucla.edu/volokh/equal.htm
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