Responding to Marty: [If it reversed], the Court would NOT necessarily be
saying "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." {Sorry for all those "nots.") The State of Missouri did not
defend its denial of the application on federal Establishment Clause
grounds. It defended on state constitutional law grounds, and it argued
that the state was free to have a broader ban on funding than the
Establishment Clause requires. That argument is about the scope of the
"play in the joints' between the Religion Clauses.
Perhaps one cannot determine that scope without fixing the boundaries of
the Establishment Clause. That would bring Marty's concerns into play.
Under current Establishment Clause law re: direct funding, however, the
SOC-SB concurrence in Mitchell v. Helms represents the controlling law.
Under that opinion, direct aid to religious entities must have adequate
safeguards against diversion to religious use. There is absolutely no
reason for SCOTUS in this case to resolve the difference between that
concurring opinion and the Mitchell plurality, which rejected the demand
for safeguards against religious use. So if Missouri loses this case, and
makes the grant to Trinity Church, the grant would still have to include
safeguards against diversion -- that is, no use of the playground as an
outdoor classroom for religious instruction, or an outdoor venue for
worship services. I wonder if Trinity Church would want the grant on
those conditions, and it might litigate further. But a grant on those
conditions, unlike an outright denial, would certainly be within the play
in the joints, as they now stand. SCOTUS would have to be quite aggressive
to rewrite the Establishment Clause rules in a case where the state has not
relied on those rules to defend its action.
Yes, it could happen, but it seems unlikely to me. Locke v. Davey was 7-2
in favor of the state having discretion to refuse to fund a scholarship for
preparation in ministry, even if the Establishment Clause allowed it.
Scalia and Thomas would need three additional votes to narrow that
discretion, to squeeze it back to what the Establishment Clause forbids,
AND to adopt the Mitchell plurality view. They have 5 for the last of
those, but I suspect not for the first two.
On Fri, Jan 15, 2016 at 9:34 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:
> "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.
>
--
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.
