I agree with almost all of what Chip writes. But both he and Eugene are simply ignoring the services/money distinction on which SOC places so much weight in her governing Mitchell concurrence. She goes out of her way to say that possible diversion to religious activity is but *one *constitutional problem--a problem that she concludes is overcome in *Mitchell *because of the precautions there--but that because diversion to religious uses is not the *only *concern, the constitutional calculus is different when it comes to aid in the form of direct money grants: "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."
I realize that few people think she's right about that--or even understand what she is referring to as "the original object of the Establishment Clause’s prohibition" -- but, for now, anyway, it's not a distinction that shoould simply be ignored. On Tue, Jun 2, 2015 at 3:43 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > I'm not at all convinced that the current law includes any categorical bar > on aid to houses of worship. What SCOTUS decision (on its facts) ever > involves direct grants to houses of worship, for use in worship functions? > > In any event, Trinity Church applied for this grant in connection with its > pre-school, which makes this case much like most of the Court's no-aid > cases -- it involves a religious school operated by a house of worship. > > SOC, in the controlling Mitchell concurrence, frames the rule this way: > "I would adhere to the rule that we have applied in the context of > textbook lending programs: To establish a First Amendment violation, > plaintiffs must prove that the aid in question actually is, or has been, > used for religious purposes." (530 U.S. at 857). Note that the Mitchell > concurrence's rule is completely consistent with a doctrine of no > discrimination against houses of worship; it is a rule about "use [of > government aid] . . for religious purposes." That rule applies to Trinity > Lutheran Church, or the Boy Scouts, or a pre-school with predominantly > secular character. The Bush and Obama Administration rules about direct > grants from the federal government are precisely in line with this; they > focus on the activities funded, not the overall character of the grantee. > > Mitchell v. Helms involved a grant of equipment, followed by Establishment > Clause litigation. But the case we are discussing involves a refusal to > make a grant, based primarily on state constitutional considerations. It > is impossible to say that Missouri was acting unreasonably or > unconstitutionally in refusing categorically to make this grant. > > Viewing the case only through the federal Establishment lens (as might be > the case in a state with a less restrictive funding rule in its own > constitution), the government grantors should still ask whether resurfacing > the playground creates a risk that the aid will be used for religious > purposes. At the margin, the character of the applicant may matter. > Trinity Lutheran Church will use this playground for its pre-school (which > is on church premises), and maybe for after school religious activities, > and probably for Sunday school activities. Perhaps the church or school > will lead parents and their children in prayer or religious music in the > playground at one or more of these times. Any or all of these presents a > risk that resurfacing will increase the quality, quantity, or duration of > religious uses. So any state could quite reasonably conclude that it > avoids an appreciable risk of a federal Establishment Clause violation by > denying applications from pre-schools that have a predominantly religious > character AND are operated by (and on the premises of) houses of worship. > > Alternatively, the state could make the grant and bar religious uses of > the resurfaced playground; monitoring and enforcing that condition presents > serious entanglement risks. Perhaps affidavits of compliance (as in > Mitchell) will do, but would the Church want the grant under such a > condition? In any event, the state is under no obligation to offer that > option. As Locke v. Davey so carefully points out, these kinds of cases > do not involve speech fora, and the considerations of viewpoint > discrimination that operate in such circumstances. > > On Tue, Jun 2, 2015 at 2:55 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > >> 1. I don’t think that speech/parade permit requirements >> are limited to “first come, first served.” *Grayned v. City of Rockford*, >> for instance, noted that demonstrations or parades could be forbidden if >> they “put an intolerable burden on the essential flow of traffic”; *Cox >> v. New Hampshire *contemplates that such factors would be considered as >> part of the demonstration licensing system, so long as the licenser’s >> “discretion ... [is] exercised with ‘uniformity of method of treatment upon >> the facts of each application, free from improper or inappropriate >> considerations and from unfair discrimination,’” and so long as the >> licenser uses a "systematic, consistent and just order of treatment, with >> reference to the convenience of public use of the highways.” *Thomas v. >> Chicago Park Dist.* likewise allowed consideration of whether “the >> intended use would present an unreasonable danger to the health or safety >> of park users or Park District employees.” >> >> >> >> To be sure, it’s possible that, if read too broadly and >> flexibly, these factors can indeed be applied in a discriminatory way. >> (Indeed, even the most precisely defined criminal prohibitions could be >> applied in a discriminatory way, just given the risk of prosecutorial >> discretion.) But the Court has been willing to conclude, and I think >> rightly so, that the factors, if sufficiently well-defined and subject to >> policing for inconsistent application, the risk of discrimination is not so >> great that it invalidates the program. >> >> >> >> What if the Missouri program? Fortunately, Missouri posts >> the evaluation criteria, which you can read at >> http://dnr.mo.gov/pubs/pub2425.pdf. The first three basically focus on >> whether the application has been completely filled out, in sufficient >> detail. The remaining factors, with specific point allotments, include (4) >> the fraction of the scrap tires that would come from Missouri, (4a) whether >> the project uses “mats/tiles or pour-in-place surface material,” (4b) >> whether “the described method of containment for the appropriate depth of >> loose surface material ... is adequate,” (4c) whether the bids specify the >> fraction of the scrap tires that would come from Missouri, (5) whether the >> grant, if awarded, would be announced in enough forms of media (if I read >> this item correctly), presumably because Missouri wants the grants to >> stimulate more interest in the program, (6) whether enough information is >> given about how “solid waste management education ... will be incorporated >> into the school’s curriculum or into informational material to be provided >> to the public by the grant applicant,” (7) whether the Solid Waste >> Management Region is involved with the project, (8) whether an adequate >> scope of work and timeline for the work are given, (9) whether the budget >> is complete and supported by three or more quotes, (10) how much scrap tire >> material the applicant would also buy itself, (11) the fraction of the >> school population and neighboring population below poverty level, and (12) >> whether there has been another recent grant in the area. >> >> >> >> Again, there’s always a risk of some discrimination in the >> implementation of any program – but here that risk seems quite low, and >> well below the risk involved in considering, for instance, traffic >> congestion and traffic hazard questions in parade demonstration schemes. >> >> >> >> 2. Even under current law, this strikes me as quite fine >> under the *Mitchell v. Helms *concurrence, given that the benefit is >> unlikely to “result in governmental indoctrination” – the playground >> surface can help kids play more safely, but even in the unlikely event that >> there would be worship services held in the playground, those worship >> services are quite unlikely to benefit materially from the resurfacing >> (given that the worship services are unlikely to involve swinging, sliding, >> and climbing monkey bars). To be sure, one difference here is that the >> school gets a grant that “for the purchase of recycled tires to resurface >> playgrounds,” rather than just getting a truckload of recycled tires. But >> I don’t read the *Mitchell *concurrence as making such targeted grants >> categorically forbidden, especially given how little sense such a >> distinction would make here. >> >> >> >> Eugene >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [ >> mailto:religionlaw-boun...@lists.ucla.edu >> <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty Lederman >> *Sent:* Tuesday, June 02, 2015 10:06 AM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: 8th Cir. upholds exclusion of religious schools from >> playground safety funds >> >> >> >> Eugene, I doubt the speech/parade permit cases are analogous: In most >> such cases, the "neutral" criterion (other than adhering to the time, place >> and manner rules) turns out to be, simply, "first come, first served." >> >> >> >> With grant programs such as these, I suppose it's *possible* that the >> administrators engage in no assessment of "quality" or "importance" or >> appropriateness" -- but I doubt it. Is it really very likely that in a >> very selective grant program, the state will be just as willing to give >> playground surfacing grants to, say, the Wiccan church, or the Church of >> Scientology, or the Nation of Islam, or the Democratic Party Headquarters >> daycare center, as it does to other playgrounds? If not, then I think >> there are serious constitutional questions raised when churches ask to be >> evaluated along with all other applicants. >> >> >> >> *Wolman* is not really on point if, as you suggest, that program was one >> that offered health services (not cash, mind you) to *all* schoolchildren. >> I agree with you that it *should *be the case that religious entities >> are, at a minimum, not constitutionally prohibited from enjoying truly >> universal benefits/entitlements, such as police and fire protection. And >> perhaps that should extend to universally available funding, as well (if >> there is any such thing). >> >> >> >> But the cases we've been discussing (those in the 6th and 8th Circuits) >> are not those in which the funding is universally available, and provided >> to all those who qualify. Hard choices must be made--and they will be made >> by state actors. >> >> >> >> In any event, whatever the law *should *be, I think you'd agree that, >> for at least several decades, the Supreme Court law *has been* that >> churches are constitutionally ineligible to receive direct funding, even >> pursuant to an otherwise universal program, let alone one that is highly >> selective. Let's say you are right that that doctrine has been >> wrongheaded, and that the Court should (and is likely to) overturn it. >> Even so: >> >> >> >> 1. Shouldn't a lower court at least acknowledge the sea change from >> decades of doctrine, and contend with the hard questions, as Sutton (to his >> credit) did? >> >> >> >> 2. Wouldn't there be something at least a bit odd, and disconcerting, >> for the Supreme Court to go further, and to say to every state and >> locality: "We know that for as long as any of us can remember, this Court >> has concluded that governments *must not* provide direct funding to >> churches. That doctrine was ill-advised and we hereby overturn it. But >> wait!: It is not only the case that the Constitution *permits* such >> funding . . . turns out we had it exactly backwards all those years: the >> Constitution *requires *churches to be funded on a nondiscriminatory >> basis. >> >> >> >> The oddity of such an about-face is, I think, one big reason why >> Rehnquist wrote, and Kennedy joined, the majority opinion in *Locke v. >> Davey*: there'd be something very weird, to say the least, about going >> from long-prohibited to *required *in one fell swoop. Doesn't mean they >> can't or shouldn't do so; but it is understandable that they'd be anxious >> about it. >> >> >> >> On Tue, Jun 2, 2015 at 11:33 AM, Volokh, Eugene <vol...@law.ucla.edu> >> wrote: >> >> 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 >> >> >> >> _______________________________________________ >> 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. >> > > > > -- > 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 > 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.
