Got it, thanks. How much more effective are those religious activities
(as opposed to secular play activities) on a resurfaced playground as opposed
to a non-resurfaced playground?
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground. A playground is a very good place for making religious points
> for 6
> and 7 year olds.
> ________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
> I suppose it's possible, but it doesn't seem that likely.
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time
> religion' tent
> revival" or even an Easter Sunrise Service. A soccer field, a baseball
> diamond, or
> tennis courts might be a better place, but I think they generally don't use
> rubber
> surfaces (since that would throw off the play of the game).
>
> But in any event, if such a service is held on a resurfaced
> playground, the
> resurfacing would have done little to help the service; the service can be
> held on
> all kinds of surfaces. Resurfacing is important when kids are running,
> climbing,
> and tumbling, not when they're standing still.
>
> Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Subject: Re: Excluding religious institutions from public safety benefits
>
> 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 Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
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>
>
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> ________________________________
> From: "Volokh, Eugene"
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> 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> [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<mailto: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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> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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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
>
> _______________________________________________
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> _______________________________________________
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