For those of us who haven't been following the case closely yet: Why wouldn't this best be described as a grant of scrap rubber rather than as a grant of funds/money? Should that characterization matter?
Mark Mark S. Scarberry Pepperdine University School of Law P.S. Condolences to Green Bay fans. Sent from my iPad On Jan 16, 2016, at 8:17 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: I just took a quick look at the briefs and decision below. Unless I missed something, it appears that neither Missouri nor amici ACLU and Americans United argued that the funding would violate the federal Establishment Clause. This led the court of appeals to write: "We . . . recognize that the Supreme Court’s Establishment Clause jurisprudence has evolved rather dramatically in the forty years since Luetkemeyer was decided. For example, it now seems rather clear that Missouri could include the Learning Center’s playground in a non-discriminatory Scrap Tire grant program without violating the Establishment Clause." [No explanation of why that is "rather clear." In fact, insofar as governing doctrine is concerned, it's at best a close question under the EC.] Given that Missouri appears committed to arguing for Locke v. Davey-like "play in the joints," it's unlikely the state will argue, in the Supreme Court, that funding would violate the EC. And without the state making that argument, the Court will almost certainly not raise the matter itself, even though under governing doctrine there's a very strong argument that the funding would be unconstitutional. In which case we'll have what's arguably a major doctrinal change without the issue even being joined. I don't want to overstate the importance of this: Even if the issue were fully briefed, there are almost certainly five or more Justices who would reject the notion that funding here would violate the EC. Still, it would be rather remarkable if the Court were to hold, for the first time in history(?), that the state can make direct grants to churches, in a case where no party has even argued to the contrary.
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