"one that could be decided quite narrowly (distinguishing Locke as being about a precisely focused state interest in not subsidizing training for ministry)."
Yes, but in order to issue even that narrow holding, the Court would necessarily be saying--wouldn't it?--that the Establishment Clause does not prohibit direct funding to churches, at least where (i) the criteria for funding are fairly rote and nondiscretionary (as Eugene suggests they are here), and (ii) the principal uses of the $$ are not for activities that involve "inherently religious" matters. And that--a holding that the EC does not categorically prohibit direct funding to churches--would be fairly momentous, no? (even if we've all been expecting it since SOC left the Court) On Fri, Jan 15, 2016 at 8:32 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > According to the 8th Circuit opinion, > http://www.scotusblog.com/wp-content/uploads/2015/11/trinity-op-below.pdf, > the Missouri Constitution (Article I, Section 7) specifically provides > that “no money shall ever be taken from the public treasury, directly or > indirectly, in aid of any church, section or denomination of religion.” The > opinion says the Church's application, under this program for playground > resurfacing funds, ranked 5th (and there was money for 14) but was denied > under that state constitutional provision. > > The 8th Circuit rejected the federal constitutional claims (free exercise, > establishment clause, equal protection clause, free speech clause) on the > authority of Locke v. Davey, 2004 (WA state does not violate the free > exercise clause by refusing, for state constitutional reasons, to allow > state Promise Scholarship recipients to use the scholarships to study in > programs that train for religious ministry). So the federal Establishment > Clause may not require Missouri to reject the Trinity Church application > (although the playground could indeed be used for worship and religious > instruction), but the question remains whether the state may have (as in > Locke) a broader funding restriction than the 1st A requires. > An important case, but one that could be decided quite narrowly > (distinguishing Locke as being about a precisely focused state interest in > not subsidizing training for ministry). > > On Fri, Jan 15, 2016 at 6:19 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> Just to be clear: The grants are not to pay teachers "teach," or to >> operate the school, as such, but instead to purchase used tires to be >> melted down into playground surfaces. The application here was for use at >> a playground at the church, to be used by children in the church daycare >> and preschool. The State received 44 applications and had funding to pay >> for 14 of them. >> >> On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V < >> slevin...@law.utexas.edu> wrote: >> >>> To what extent is it either required or ethically questionable to point >>> out, if one is objecting to conclusion “a” above, to point out that any >>> such doctrine would require “sovereign states” to pony money up to Moslem >>> schools, including, say, madrasas funded by Saudi Arabia in order to teach >>> various pernicious Wahabi doctrines? As Donald Trump might put it, I’m >>> just asking, though, as with Trump, I’m confident that a lot of Evangelical >>> Christians who will not be happy with an argument that their tax dollars >>> have to go to fund Islamic schools. >>> >>> >>> >>> sandy >>> >>> >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >>> *Sent:* Friday, January 15, 2016 4:15 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! >>> >>> >>> >>> Under O'Connor's controlling opinion in *Mitchell*, recall, there >>> remain "special dangers associated with direct money grants to religious >>> institutions," and the Court's "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." >>> >>> >>> >>> It'd be quite something if the Court moved from the current view that >>> such funding is constitutionally prohibited (e.g., *Tilton, Nyquist*, >>> the SOC opinion in *Mitchell*) to the view that it's constitutionally >>> required (i.e., that the state can't discriminate against the church as >>> recipient of the direct aid); but in light of the composition of the >>> current Court, that's a very real possibility. >>> >>> >>> >>> In theory, at least, all three dispositions are in play: >>> >>> >>> >>> i. Missouri must fund the church >>> >>> ii. Missouri can't fund the church >>> >>> iii. Missouri has discretion to go either way (which in this case would >>> mean no funding, per the Missouri Constitution) >>> >>> >>> >>> If I had to guess, I'd say (ii) is the least likely outcome, even though >>> that's been the governing law for many decades. >>> >>> >>> >>> On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. < >>> howard.fried...@utoledo.edu> wrote: >>> >>> SCOTUS today granted cert in Trinity Lutheran Church v. Pauley. Details >>> at >>> http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html >>> >>> >>> >>> >>> Howard Friedman >>> >>> >>> _______________________________________________ >>> 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. >>> >> >> >> _______________________________________________ >> 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.
