I wonder if I might offer a modest (well maybe not so modest) amendment to
Eugene's excellent hypotheticals.
Say that the government adopted a package bill. It provided that:
A. Houses of worship and directly affiliated schools and day care centers:
Need not comply with many land use regulations that secular institutions must
obey.
Need not comply with any government regulation unless the regulation was
determined to be the least restrictive means of furthering a compelling state
interest
Need not comply with many generally applicable anti-discrimination laws (the
extent of this immunity would be spelled out in the regulatory package)
Were protected against tort liability relating to professional negligence and
emotional distress causes of action
Would receive favorable tax treatment with regard to the housing of clergy
B. Further, Houses of worship and directly affiliated schools and day care
centers would not be eligible for cash grants offered generally to private
institutions (even grants providing reimbursements for expenses). However, they
would be entitled to receive government services generally provided to private
institutions by public employees including guards to protect against gang
violence and the spraying of grounds to eradicate mosquitos carrying dangerous
virus.
A preamble to the package would explain that the legislature was trying to
further some of the goals of the separation of church and state by limiting
both governmental interference with religious institutions and government
subsidizing of religious institutions.
Would this legislation be constitutional?
Alan
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Volokh, Eugene <vol...@law.ucla.edu>
Sent: Saturday, January 16, 2016 9:02 AM
To: Law & Religion issues for Law Academics
Subject: Excluding religious institutions from public safety benefits
Two quick question for list members about Trinity Lutheran, if I
might. Say that the government offered grants to schools and day care centers,
on a largely nondiscretionary basis, for the following:
1. Removing potentially cancer-causing asbestos.
2. Retrofitting for earthquake safety.
3. Hiring security guards to prevent gang violence (and
intercede in mass shootings and the like).
4. Eradicating mosquitos on the property that carry some
dangerous virus (e.g., West Nile Virus).
(Assume all the grants came with the usual penalties for misuse of state funds,
including criminal penalties for willful misuse.) But say that the government
expressly stated that religious institutions - and thus the children who go to
those institutions - can't benefit from such grants.
If you think that the exclusion in Trinity Lutheran is
constitutional, do you think all these exclusions would be, too?
If you think that the exclusion in Trinity Lutheran is actually
mandated by the First Amendment, do you think all these exclusions would be,
too?
Eugene
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