I agree with Chip that an accommodation analysis may permit the creation of these facilities, but the analysis changes if we are evaluating a general funding program where no substantial burden on religious liberty requires accommodation.
One important difference is that the accommodation can be tailored to religious needs. The courts have upheld accommodations for religious individuals, institutions, and practices that are not available for secular individuals, institutions, and practices. A funding program operating outside of the accommodation context must be neutral and cannot discriminate in favor of religion. I do not consider the government funding of a chapel for prayer, even a non-denominational chapel, to be a neutral expenditure allocated on the basis of neutral criteria. If funding for secular contemplation rooms were also available (or if the uses of the rooms were sufficiently generic), one might avoid the neutrality issue. But we would still be left with cases like Tilton and the remaining Establishment Clause principle that government funds cannot be used for religious instruction, proselytizing or worship – even if the funds are allocated according to ostensibly neutral criteria. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, October 28, 2015 10:21 AM To: Law & Religion issues for Law Academics Subject: Re: Muslim-focused "reflection room" in airport Is this any different than creating chapels or worship/reflection spaces on a state university campus, in a county hospital, or on a military base? What holds these examples (including the airport) together is the desire to accommodate the worship needs of patrons/participants who have no ready alternative available (they are far from home, perhaps trapped physically for a long time, and perhaps under unusual stress). So government may make these spaces available, but may not encourage or promote their use. Eugene's airport example may just reflect the likely "gerrymandering" of traditional chapel space in the design associated with Christian worship. We would think very differently about all this if the government set up a program for helping nonprofits more generally (like schools or social service providers) construct new space, and permitted the construction of worship spaces within such a program. That would go to the core of the Establishment Clause prohibition on government financial support for salary of clergy or the building of churches. What Nyquist and Tilton said about that seems to me quite good law still, and it has nothing to do with denominational neutrality. On Wed, Oct 28, 2015 at 11:18 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: A blog reader asked me about this, and I thought I’d pose the question to the list. Orlando Airport is apparently spending $250,000 to build a “reflection room” where Muslim travelers can more conveniently pray, especially given the expansion of the airline Emirates at the airport. See http://www.orlandosentinel.com/business/os-orlando-international-airport-reflection-room-20150808-story.html . The reflection room is in addition to “the small, nondenominational chapel tucked away on Airside B, just past the security checkpoint,” where Muslim travelers sometimes now go (and where there are some prayer rugs available for them). The reflection room would be open to all religious groups, as I understand it, but will be primarily designed with Muslim travelers in mind. Now I don’t think this should be a problematic accommodation, any more than serving kosher meals (or halal meals) in those government cafeterias in which there is sufficient demand. But I wonder whether there might nonetheless be a First Amendment problem under the 1970s cases barring the use of government funds for physical places where religious services will be held. (I realize the issue arises as to “reflection rooms” more broadly as well.) What do people on the list think about it? Thanks, Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
