without getting too far into the details here; there are many times when
religions hold outdoor services, most obviously and Easter Sunrise Service. A
playground might be just the place for that, or for an "old time religion" tent
revival.
******************
Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof
LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK S7N 5A6
canadapaul.finkel...@yahoo.com
c) 518.605.0296
andSeniorFellowDemocracy, Citizenship and Constitutionalism Program
Universityof Pennsylvania
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From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Saturday, January 16, 2016 6:25 PM
Subject: RE: Excluding religious institutions from public safety benefits
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{}#yiv7323085659 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 surfaceswhen 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 surelywill 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> 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
To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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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.
