Posner's opinion in FFRF v. McCallum ignores SOC's Mitchell opinion on the
question of whether indirect ("beneficiary choice") aid must pass through
the hands of a beneficiary (as a voucher would). He argues that such a
requirement is unnecessary. But McCallum is an indirect aid case, and so
does not raise the question of diversion to religious purpose (or the
question of cash vs. in-kind aid). Judge Sutton in American Atheists
writes an opinion that sounds very much like the plurality (not the
controlling concurrence) in Mitchell; he emphasizes the idea of evenhanded
treatment of religious and secular entities (analogizing to speech cases
like Good News Club and Rosenberger).
So these cases support the notion that the Courts of Appeals have not just
lined up behind every idea in the Breyer-SOC opinion in Mitchell.
Perhaps more telling, however, is the interpretation that the Executive
Branch has been consistently advancing in the past two Administrations.
Under GW Bush's Faith-Based and Community Initiative and Barack Obama's
successor program Faith-Based and Neighborhood Partnerships, agency
regulations across the government distinguish between indirect aid (where
aid only passes to a provider by the independent choice of a service
beneficiary), and direct aid in the form of a grant to a provider, where
the grant amount is not determined by such independent choices. In direct
aid programs, the service provider may not include religious worship,
instruction, or proselytizing. Any such religious activity must be offered
at a separate place or time, and be funded without federal government
support. No such limitation on religious content applies in cases of
indirect aid. These are precisely the lines encompassed by SOC (Zelman,
plus her Mitchell concurrence). They are not the lines drawn in the
Mitchell plurality.
The 8th Circuit panel may have believed that there would now be 5 votes
(Alito replaces SOC) for the Mitchell plurality view, but we know that
Circuit Courts are not supposed to presume developments at SCOTUS that have
not occurred. Under the current law from SCOTUS, a direct grant to a
pre-school that teaches religious content would violate the Establishment
Clause because the grant directly subsidizes religious activity, and has no
safeguards to prevent that.
This is all quite separate from Nelson's point about state discretion not
to support religious activity even if the Establishment Clause permitted
it. But the more reasonable the view that the Establishment Clause would
not permit the support, the more reasonable that exercise of discretion
becomes.
On Mon, Jun 1, 2015 at 4:58 PM, Doug Laycock <dlayc...@virginia.edu> wrote:
> In a similar vein is Freedom from Religion Foundation v. McCallum, 324 F.3d
> 880 (7th Cir. 2003), where Judge Posner described Zelman and then said of
> the case before him:
>
> "The state in effect gives eligible offenders "vouchers" that they can use
> to purchase a place in a halfway house, whether the halfway house is
> "parochial" or secular. We have put "vouchers" in scare quotes because the
> state has dispensed with the intermediate step by which the recipient of
> the
> publicly funded private service hands his voucher to the service provider.
> But so far as the policy of the establishment clause is concerned, there is
> no difference between giving the voucher recipient a piece of paper that
> directs the public agency to pay the service provider and the agency's
> asking the recipient to indicate his preference and paying the provider
> whose service he prefers."
>
> He never mentioned Mitchell. One might say that this particular judge cares
> more about economics than about law, but I can't imagine he's the only
> judge
> with that reaction to this question. And while I haven't read the losing
> briefs in Mitchell, my guess is that they were much more in support of
> Souter's position -- that this was unconstitutional no matter how the
> government went about it -- than of O'Connor's distinction between per
> capita distribution and true private choice.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Luke Goodrich
> Sent: Monday, June 01, 2015 4:44 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: 8th Cir. upholds exclusion of religious schools from
> playground
> safety funds
>
> 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.
>
>
>
> _______________________________________________
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>
--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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