So if there is a gang violence problem at schools, and the
government gives grants to schools with the most serious problems to hire a
security guard, the government may - indeed, it sounds like "must" - refuse to
do the same for religious schools?
What about tax deductibility of contributions, and the property
tax exemption, which the Court has long recognized (Texas Monthly v. Bullock,
Taxation With Representation v. Regan, Bob Jones Unv. v. United States) as
involving a form of subsidy? May (and must) the government refuse to extend
these benefits, available to a vast range of secular nonprofits, to religious
institutions?
What about in-kind benefits, such as free or subsidized sewer
access, trash pickup, fire protection, or police protection? May (and must)
the government refuse to provide equal access to such things to churches and
religious schools?
If it is really objectionable to take one penny of a citizen's
money to support any church or religion even through an evenhanded benefit
program, then wouldn't the government have to exclude religion from all these
benefits? Conversely, if the government can offer such benefits, it seems to
me that this is because the prohibition is on taking money to support religion
because of its religiosity, rather than to offer religious people and
institutions equal access to broadly available benefits.
Eugene
From: Finkelman, Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene <vol...@law.ucla.edu>; Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu>
Subject: Re: Excluding religious institutions from public safety benefits
Doesnt it depend on how much resurfacing was needed. But is that the issue.
If the giv money is supporting and enhancing sectarian worship, does it matter
how much. As Madison noted in his remonstrance, it isd objectionable to take
one penny of a citizens money to support any church or religion. Do you really
want to start analyzing "how much" you can spend of ny tax dollars to supporrt
your church?
Sent from my T-Mobile 4G LTE device
------ Original message------
From: Volokh, Eugene
Date: Sun, Jan 17, 2016 2:17 PM
To: Law & Religion issues for Law Academics;
Cc:
Subject:RE: Excluding religious institutions from public safety benefits
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>
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto: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<mailto: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<mailto: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>
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto: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<mailto: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<mailto:paul.finkel...@yahoo.com%3cmailto:paul.finkel...@yahoo.com>>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> ________________________________
> From: "Volokh, Eugene"
> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu<mailto:vol...@law.ucla.edu%3cmailto:vol...@law.ucla.edu>>>
> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu%3cmailto: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-<mailto:religionlaw-boun...@lists.ucla.edu%3cmailto:religionlaw->
> boun...@lists.ucla.edu<mailto: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<mailto:religionlaw@lists.ucla.edu%3cmailto: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<mailto:vol...@law.ucla.edu%3cmailto: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<mailto:Religionlaw@lists.ucla.edu%3cmailto: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<mailto:Religionlaw@lists.ucla.edu%3cmailto:Religionlaw@lists.ucla.edu>>
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>
> _______________________________________________
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