I agree with Marty that the Eighth Circuit failed to grapple with the doctrine
in key respects. But when he says that "Churches have not been constitutionally
eligible to receive government grants -- especially selective grants -- for
many decades," I think he might be overstating the extent to which the lower
courts have agreed with his interpretation of Mitchell and the other direct aid
cases.
An important counterexample is Am. Atheists, Inc. v. City Of Detroit Downtown
Dev. Auth., 567 F.3d 278 (6th Cir. 2009), in which the Sixth Circuit
unanimously upheld the inclusion of churches in a direct, selective grant
program. There, Detroit wanted to improve the appearance of a section of
downtown. So it encouraged property owners to renovate their buildings and
parking lots, and then reimbursed them for half the cost of the renovations.
All told, the City received 189 qualifying applications and approved 123
projects (of which 91 were completed). Nine of the projects were completed by
three different churches, and they included things like renovating a church
facade and steeple clock, and replacing church signs and covers over stained
glass windows.
Judge Sutton considered Mitchell and the other direct aid cases at some length,
and it seems, if I understand him and our fellow interlocutors correctly, that
he goes more with the approach described by Doug and advocated by Eugene than
with the approach described by Marty. I.e., he doesn't treat the distinction
between direct funding and other forms of aid as dispositive; he doesn't treat
Zelman as inapposite; and he distinguishes Tilton and Nyquist. In short, he
holds that as long as the aid is distributed to religious and non-religious
groups on in an evenhanded way, and does not have the purpose or primary effect
of advancing religion, it should be upheld.
I assume Marty would argue that the Sixth Circuit has simply gotten Mitchell
and the other direct aid cases wrong. But at a minimum, that would suggest that
his reading of those cases has not been fully accepted. Alternatively, maybe
Marty would argue that the grant program was not truly "selective." But when
there's a fairly detailed application process and 35% of qualifying
applications get rejected, that seems fairly selective--unless I'm
misunderstanding what Marty means by that term.
------------------------------
Message: 16
Date: Sun, 31 May 2015 23:44:27 -0400
From: Marty Lederman <lederman.ma...@gmail.com>
To: Douglas Laycock <dlayc...@virginia.edu>
Cc: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
Subject: Re: 8th Cir. upholds exclusion of religious schools from
playground safety funds
Message-ID:
<cacavkoc-otpl3fo3m5k_eujbr-m87qn97pphanq1cndecxq...@mail.gmail.com>
Content-Type: text/plain; charset="utf-8"
"That doesn't mean that many people besides O'Connor think the distinction
makes any sense."
Well, a whole slew of religious parties, their amici, and Justices, in
cases from Witters on down, thought the distinction was of vital
constitutional significance. More to the point -- the point I was making
-- under governing Supreme Court law the distinction makes all the
difference in the world, whatever one thinks the doctrine *ought* to be. A
bunch of SCOTUS cases would come out the other way under Thomas's view.
Therefore you'd think the parties and the Eighth Circuit judges would at
least have bothered to grapple with the doctrine, rather than simply
stating, without citation, that "it now seems rather clear" that the rule
is the opposite of what the governing precedent says it is.
And the fact that this is a selective grant program, in which the state
makes discretionary decisions about which applicants get the dollars (what
do you think the odds are that the Scientology or Wiccan churches would
have been among the lucky recipients?) makes the omission even more
striking.
Churches have not been constitutionally eligible to receive government
grants --especially selective grants--for many decades. Whatever one
thinks about how the Court *should *construe the religion clauses, it would
certainly be a very significant shift in longstanding doctrine for the
Court even to *allow* Missouri to give grants to this church, let alone
require it do so.
On Sun, May 31, 2015 at 10:36 PM, Douglas Laycock <dlayc...@virginia.edu>
wrote:
> I understand that. That doesn't mean that many people besides O'Connor
> think the distinction makes any sense.
>
> The state's exercise of discretion matters, because the state might
> discriminate in ways that are hard to detect. Per capita distribution
> instead of vouchers does not matter, and so O'Connor's opinion is hard to
> take seriously. And I'm guessing that many judges don't pay it much heed
> after Zelman.
>
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