Note that the federal government is already making grants to houses of worship
under the Department of Homeland Security's Nonprofit Security Grants program
to strengthen security safeguards at nonprofit institutions that are
particularly likely to be the targets of terror attacks. Apparently funded at
$20 million in latest budget bill. In the past, a number of synagogues have
received grants.
More broadly, does anyone think that with 6 Catholic justices on the Court
there is a possibility that the Court might use the Trinity Lutheran case to
find state Blaine Amendments unconstitutional because of the anti-Catholic
sentiment that originally motivated their passage in many states?
Howard Friedman
________________________________
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 6:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: Excluding religious institutions from public safety benefits
I’m not sure how upgrading the playground will make it
materially more usable as space for worship and religious instruction. Few
institutions, I expect, want to do worship and religious instruction on
playgrounds, rather than more familiar places. But those that do probably
don’t care about rubber vs. gravel surfaces when using a space for worship and
religious instruction, which rarely involves tumbling and running around.
Indeed, the improved surface is important for everyday playground physical
safety, and not really important for the very rare worship/religious
instruction on the playground.
And a building that’s more earthquake safe, or that has asbestos removed, or
that has a security guard, or lacks dangerous mosquitoes outside, actually is
slightly more attractive as space for worship and religious instruction: Some
people might be more willing to send their kids to a school or a church that’s
earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to a
church or school that seems dangerous. The effect won’t be vast, but again
it’s not like the extra benefit of a rubberized surface for worship and
religious instruction is vast, either.
Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free
church or religious school building surely will be used for religious purposes,
right? One can imagine a religious school or preschool that doesn’t use its
playground for religious purposes – indeed, I’d think that’s quite common – but
a church or a school definitely would use the safer buildings for religious
purposes. Chip, under your proposal, wouldn’t a state therefore be equally
free to say that “play in the joints” lets it deny all those safety grants
(otherwise generally available to all other institutions) to religious
institutions?
Eugene
Chip writes:
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits
Neither Eugene's or Alan's questions invite quick or easy answers, but here's a
start:
1. Eugene's examples all involve health and safety. None can be diverted to
religious use; all make religious use, and all other uses of the property,
healthier or safer. Compare Mitchell v. Helms -- in-kind aid to schools,
public and private, in poor areas. The aid included things like computers,
books, AV equipment, etc. Plurality said that neutral distributional criteria
(public and private schools, no sectarian discrimination) is all you need.
Dissent said divertibility of aid to religious use is fatal. Controlling
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not
divertibility, so the program is OK because it contains adequate (and
non-entangling) safeguards against religious use. That is the Establishment
Clause right now.
Trinity Lutheran Church seems to me to fall between Eugene's examples and
Mitchell. The playground will be safer for play, but it will also be more
useable as space for worship and religious instruction. Improving the
playground sufficiently would be (imperfectly) analogous to adding a new
classroom to a religious school. Divertible to religious use -- without
safeguards, unconstitutional. Missouri could reasonably conclude that a grant
to churches and church schools for playground surfaces would require safeguards
that would indeed entangle the church and the state (how do you enforce the
restriction on religious instruction on the playground in a pre-school?) So,
whether or not the grant would ultimately violate the First Amendment, it would
present a problem of direct government support for religious instruction, and
Missouri wants to avoid that federal and state constitutional problem. There's
the play in the joints. This is not how Missouri argued this case below, but
it is how it should argue in the Supreme Court....
On Sat, Jan 16, 2016 at 12:02 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
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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--
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
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