Indeed they are; but does it follow that the government should be
required to, or even allowed to, refuse to offer health and safety grants on an
evenhanded basis to such preschools? Again, asbestos remediation, earthquake
retrofitting, mosquito abatement, and protection against criminal attack all in
some measure improve the preschool, and make it more appealing to parents -- at
least as much, I think, as playground resurfacing would.
Eugene
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, January 17, 2016 12:38 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits
It might also be relevant to note that at least for many congregations,
pre-schools -- which typically have playgrounds -- are very important sources
of revenue for the house of worship at which they are based.
Alan
Sent from my iPhone
> On Jan 17, 2016, at 11:16 AM, "Graber, Mark" <mgra...@law.umaryland.edu>
> wrote:
>
> 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
>
>
>
>
>
> Call
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> You'll need Skype CreditFree via Skype
>
>
> ________________________________
> 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.uc
> la.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 bel!
ow, 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
>
> _______________________________________________
> To post, send message to
> 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
>
> _______________________________________________
> To post, send message to
> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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> _______________________________________________
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> unsubscribe, change options, or get password, see
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