Let me apologize in advance because I probably will not be able to participate
in a timely way to further posts in this thread (which is a very interesting
thread). But let me question Eugene's suggestion that just as sufficiently
cabined rules for parade permits prevent viewpoint discrimination similarly
cabined rules for the distribution of grants to secular and religious
institutions should prevent undue risk of religious discrimination.
I see several problems with this analogy. First, there are meaningful
constitutional constrains on content-neutral speech regulations, although they
are less rigorous than strict scrutiny. Thus, a structured process for awarding
permits that creates viewpoint discriminatory effects could still be challenged
as impermissible even though it wasn't facially discriminatory. What
constitutional checks are there on facially neutral grant criteria that will
predictably favor some faiths over others? Take an easy case. A state sets up
eligibility rules for grants to private schools (through vouchers or direct
aid) that requires a school to have at least 250 students and to have been in
existence for 5 years in order to receive funds. Obviously this rule favors
larger faiths -- it probably excludes a great many minority faiths in many
communities entirely -- and it favors faiths with existing educational
infrastructures. What standard of review applies to grant criteria like this? I
assume rational basis review. A permit system that limited permits exclusively
to large groups that had been around a long time would be subject to free
speech challenge.
Second, and a related concern, is the fact that practices and behavior are less
likely to correlate with speech viewpoints and much more likely to correlate
with religious belief and affiliation. I think a program that requires schools
receiving funds for playgrounds to operate the playgrounds on Saturday as well
as the school week is facially neutral under the Court's religion clause case
law. Am I wrong about this? I doubt that this would constitute a religious
gerrymander under Lukumi. I'm not suggesting that there aren't some
correlations between behavior and practices and viewpoints of speech. I just
think it is a lot easier to use "neutral" criteria to discriminate on the basis
of religion.
My third concern does not apply to Eugene who has been clear that he does not
support constitutionally mandated accommodations to protect religious
individuals or institutions against neutral laws of general applicability. But
if you believe, as I do, that the fact that a regulation is a neutral law of
general applicability provides inadequate assurance that the law does not
unfairly discriminate against religious groups or unreasonably burden religious
liberty than I find it hard to understand why you wouldn't be similarly
concerned about the risk of discrimination when facially "neutral" criteria is
used to distribute funds to religious individuals and institutions. If anyone
on the list supports grants to religious schools or other religious
institutions and also supports mandatory requirements that negate or
substantially reduce the risk of religious discrimination, I would be very
interested in reading their post.
Alan Brownstein
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Tuesday, June 2, 2015 8:33 AM
To: Law & Religion issues for Law Academics
Subject: RE: 8th Cir. upholds exclusion of religious schools from playground
safety funds
1. In Trinity, the state apparently had a pretty detailed
application evaluation process for resurfacing grant applications, to the point
that it could tell Trinity that it had ranked 5th out of 44 applications. I
imagine many highly bureaucratized processes with 44 applications, especially
ones that don't involve difficult judgments of artistic or scientific quality,
are comparably structured. In the Free Speech Clause context, sufficiently
cabined (even if not perfectly mathematical) rules for parade permits and the
like are seen as sufficient to prevent undue risk of viewpoint discrimination.
I don't see why sufficiently cabined rules for grant applications wouldn't
suffice to prevent undue risk of religious discrimination.
2. I think that religious institutions should generally be able
to participate in generally available benefits programs on the same footing as
secular ones, even if the benefits (e.g., tax exemptions, post-natural-disaster
rebuilding funds, and so on) can be used for specifically religious aspects of
the institution; in this respect, I largely agree with the Mitchell plurality.
But note that, in the playground case, it is extremely unlikely that the safer
playground surface would itself be used for, say, religious worship; even if
there is a religious service on the playground, that service will likely not
involve climbing and jumping, and thus could have just as well been performed
regardless of the surface. The safer playground surface simply makes playing
safer for kids.
3. Even in the 1970s, Wolman v. Walter noted that "the
provision of health services to all schoolchildren public and nonpublic does
not have the primary effect of aiding religion" and is thus constitutional. To
be sure, those could be conceptualized as being given to schoolchildren
directly, rather than to schools. But you can't provide safer playground
surfaces on a schoolchild-by-schoolchild basis - the way you provide this
health-protection service to schoolchildren (at those schools, public and
nonpublic, selected through an evaluation process that doesn't discriminate
based on religion) is by resurfacing the playground at the school. That
strikes me as an eminently legitimate thing for the government to do (we're
talking about the Establishment Clause) and as something that the government
ought not to be able to discriminate against religious schools in doing (back
to the Free Exercise Clause and perhaps the
effect-of-hindering-rather-than-promoting / disapproval-rather-than-endorsement
prong of the Establishment Clause).
Eugene
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