To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit
legislative exemptions available to religion but not non-religion, or just
legislative burdens placed on religion but not non-religion? If only the
latter, is it really a maximalist equal treatment theory? If both the
former and the latter, is it remotely reconcilable with either current
doctrine or longstanding tradition allowing legislative accommodation of
religion? See Cutter ("Religious accommodations ... need not 'come packaged
with benefits to secular entities'").- Jim On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 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 > > >
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