To you only at this point, given my memory (which may be mistaken) that you previously castigated the opinion in Locke for avoiding the "little Blaine Amendment" problem, relegating all mention to a footnote. The "long history" in Missouri that the 8th majority finds so compelling dates to 1870 and 1875. These strike me as constitutional provisions that potentially have their origins in a political and social climate that is far different from the one that animated the founding generation. That said, I don't know the actual Missouri history.
Mark Killenbeck Sent from my iphone On May 31, 2015, at 7:04 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Under Mitchell v. Helms, would it even be constitutionally permissible for the state to give direct grant funding to the church? Recall that SOC, in her governing opinion, rested quite heavily on the distinction between monetary and nonmonetary aid when it comes to direct aid (as opposed to vouchers): Justice Souter is correct to note our continued recognition of the special dangers associated with direct money grants to religious institutions. It does not follow, however, that we should treat as constitutionally suspect any form of secular aid that might conceivably be diverted to a religious use. As the cases Justice Souter cites demonstrate, our concern with direct monetary aid is 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. See, e.g., Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 668 (1970) ("[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity"). Statements concerning the constitutionally suspect status of direct cash aid, accordingly, provide no justification for applying an absolute rule against divertibility when the aid consists instead of instructional materials and equipment. * * * * This Court has "recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions." Rosenberger, 515 U.S., at 842, 115 S.Ct. 2510; see also ibid. (collecting cases). If, as the plurality contends, a per-capita-aid program is identical in relevant constitutional respects to a true private-choice program, then there is no reason that, under the plurality's reasoning, the government should be precluded from providing direct money payments to religious organizations (including churches) based on the number of persons belonging to each organization. And, because actual diversion is permissible under the plurality's holding, the participating religious organizations (including churches) could use that aid to support religious indoctrination. To be sure, the plurality does not actually hold that its theory extends to direct money payments. See ante, at 2546-2547. That omission, however, is of little comfort. In its logic-as well as its specific advisory language, see ante, at 2546-2547, n. 8-the plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives.
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