Alan -- I'd be interested to know how one might design such a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to make contributions to their churches. It doesn't seem that easy to me; perhaps you could explain to the group how one would design such a program to target donations to churches.
As an aside, it's not really right (in the vast majority of cases) to think of church attendees paying "dues" as opposed to making donations. See, e.g., this Freakonomics article on dues vs. donations: http://www.freakonomics.com/2010/10/19/churches-versus-synagogues-voluntary-donations-versus-dues/ My understanding is that at most Christian church services, donations are made by a pass-the-plate method, there is often some attempt to anonymize who has done the giving, and anyone in attendance may give, not necessarily just members. Don't know if that affects the analysis at all, but "dues" is not the right word. Eric ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Thursday, January 12, 2012 6:07 PM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds We disagree -- in part because I think it would be easy to draft a formally "religion-neutral" voucher that would be used primarily and overwhelmingly by church members to pay dues and in part because I think the Establishment Clause prohibits the government from taking over the financing of religion (even if it funds some secular institutions while doing so.) -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 2:15 PM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think that if the government decided to give a religion-neutral "charitable donation voucher" that congregants could give to their church, to the ACLU, to a private school (secular or religious), or anyone else, that would be just as constitutional as the religion-neutral charitable donation matching-funds-voucher that is provided by the charitable donation tax deduction. (I agree that a religion-only voucher would be unconstitutional, see Texas Monthly v. Bullock, but I assumed that we were talking about religion-neutral programs.) Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein > Sent: Thursday, January 12, 2012 2:07 PM > To: Law & Religion issues for Law Academics > Subject: RE: Supreme Court sides with church on decision to fire > employee on religious grounds > > No. I'm saying that government funding questions regarding religious > institutions require a multi-factor analysis and the fact that the > government funding is distributed through vouchers is only one factor > to be considered in the analysis. Are you saying that because > taxpayers receive charitable deductions for funds they donate to their > house of worship and churches (and clergy) receive various tax > exemptions that it would be constitutional for government to give > vouchers to congregants that they could use to pay church dues and the salary > of their clergy? > > Alan > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene > Sent: Thursday, January 12, 2012 1:24 PM > To: Law & Religion issues for Law Academics > Subject: RE: Supreme Court sides with church on decision to fire > employee on religious grounds > > Alan: Doesn't that return us to the perennial question of whether > Witters was rightly decided, whether the GI Bill should have been > unconstitutional, and whether the Court has been right in saying that > tax exemptions are generally a form of subsidy? After all, under > Witters, the GI Bill, and the charitable tax exemption, either > government money or the benefits of deductibility are provided to, > among other things, religious instruction, proselytizing, and worship. > Are you indeed saying that the Establishment Clause prohibits this? > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein > > Sent: Thursday, January 12, 2012 1:13 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Supreme Court sides with church on decision to fire > > employee on religious grounds > > > > As you know, Tom, I don't assign as much weight to the distinction > > between direct grants and vouchers as you, and the Court, do -- and > > my analysis of voucher programs is multi-factored. But for the > > purposes of this argument, let me point to two problems with the > > government paying the salary of the employees of a religious > > institution who play "an important role as an instrument of her > > church's religious message and as a leader of its worship > > activities." First, government funding will be used for religious > > instruction, proselytizing and worship -- which I believe the Establishment > > Clause prohibits. > > > > Second, and more importantly for the present discussion, the core of > > the Court's argument in Hosanna-Tabor is that government should not > > be involved in decisions that affect the faith and mission of the church. > > But the faith and mission of the church cannot be independent and > > autonomous from government if the church is dependent on government > > funding to pay the salaries of those who play an "important role as > > an instrument of her church's religious message and as a leader of > > its > worship activities." > > > > I don't think the issue should be resolved by permitting government > > to fund positions that fall within the ministerial exception if the > > religious institution does not discriminate on race, nationality, > > gender or disability, while allowing government to refuse to fund > > those same positions if discriminatory criteria control the > > religious institution's hiring decisions. That gives the government > > control over the religious institution's core religious hiring > > decisions -- exactly what the ministerial exception is intended to > > prohibit. I think that these positions, because of their status and > > function, should not be funded by government whether the religious > > institution exercises the full > extent of the authority it has under the ministerial exception or not. > > > > Alan > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
