People can debate to what extent this should matter, but I
should note that the funding criteria in Trinity Lutheran seem to be pretty
nondiscretionary as these things go, see http://dnr.mo.gov/pubs/pub2425.pdf .
Of course, all systems can be enforced in discretionary ways (police protection
and judicial enforcement of legal rules are classic examples); but these seem
to leave relatively little wiggle room, especially for evaluation of religious
or ideological doctrine.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 2:15 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Cert Granted in Blaine Amendment case
On first glance, this has the potential to be a huge case. Not only will it
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke
even survives the departure of Rehnquist and O'Connor) on the Free Exercise
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v.
Helms -- implicating whether and under what circumstances a state can offer
selective, discretionary "direct funding" to a religious institution . . .
indeed, to a church itself!
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