I share Sandy's skepticism about the "play in the joints"
locution, but I wonder why equal treatment doesn't make sense as a maximalist
theory?
Consider Sandy's auditoria hypothetical. It's hard to infer
much based on it, I think, because it's hard to imagine the government actually
building auditoria for private organizations. But let's consider two more
plausible versions:
1. The government builds a city auditorium, not for its own speech but to
enable private organizations to speak. Churches would indeed have a First
Amendment right to equal access to such an auditorium. See Rosenberger v.
Rector.
2. The government offers property tax exemptions for a wide range of
nonprofits, and makes contributions to such nonprofits tax-deductible. Thus,
if a nonprofit is building an auditorium, it in effect gets a massive
matching-grant subsidy from the government. There's nothing nonsensical, it
seems to me, about churches being entitled to use this subsidy for building
their churches. Indeed, they get such a subsidy now, and it's seen as
constitutional. See Walz. And I think that, if some government decided to
exclude churches from such subsidies (while making them available to a vast
range of comparable nonprofits), that would indeed violate the Free Exercise
Clause.
Now one can argue that, as a matter of history, police, or what have you, the
Free Exercise Clause should not be read as mandating equal treatment for
religious observers in general, as to funding, as to some kinds of funding, or
what have you. But I just don't see why the equal access rule wouldn't "make[]
sense."
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, January 17, 2016 9:58 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: The Establishment Clause question in the Trinity Lutheran case
Shouldn't we admit that "play in the joints" is simply a euphemism for judicial
balancing between the competing notions of no establishment, on the one hand,
and free exercise+equality on the other. Neither makes sense as maximalist
theory. The former would prohibit police protection, the latter would require
the state to build churches if it auditoria for the people to use as gathering
places to discuss important issues. So we rely on Rehnquist's and his
successors' hunches as to where one should draw the line. We delude ourselves
in believing that legal doctrine can work itself pure in this--or, for that
matter, any other significant--area. "The life of the law is experience, not
logic."
The problem is that it is awkward for well-paid law professors to teach their
students that law often comes down to the idiosyncratic views of the median
justices and that it is basically foolish to believe there are true doctrinal
rationales that can predict future decisions.
Sandy
Sent from my iPhone
On Jan 17, 2016, at 7:45 AM, Steven Jamar
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:
It seems to me that the play-in-the-joints theory and providing accommodations
between exercise and establishment shoiuld win out in this instance thereby
upholding the Missouri Constitutional ban on direct and indirect financial
support for religious organizations.
A ruling that pushes the neutrality principle this far as to prohibit states
from making these sorts of choices and judgments seems likely to further make a
hash of the problem rather than simplifying or clarifying things. A rule that
allows for such subsidy of religion by the state while allowing states not to
so subsidize religions in these ways seems to be what the voucher cases seem to
indicate as the direction the law is going.
But as for me, all bets are off on this one as to result and as to theories
selected from the grab-bag the court has created over the decades.
Steve
--
Prof. Steven D. Jamar
Howard University School of Law
vox: 202-806-8017
fax: 202-806-8567
http://sdjlaw.org
"The two most important days in your life are the day you are born and the day
you find out why."
Mark Twain
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