Agreed, Rick, my formulation was an oversimplified caricature--of course no one is advocating for a blanket right to "opt out of the welfare state" or to categorically avoid "sharing in its burdens." I even think it's possible to explain why the church in H-T should be allowed to do what other employers are not--to fire an employee for threatening to file an ADA suit--and to simultaneously argue that Missouri *cannot *establish a prophylactic "no church funding" rule. But surely, there's something at least *a bit *discordant about the "religious institutional autonomy" and "strict religious neutrality" norms that the Court will be entertaining simultaneously in Zubik and Trinity, isn't there?
On Mon, Jan 18, 2016 at 9:36 AM, Rick Garnett <rgarn...@nd.edu> wrote: > Dear Marty, > > I agree, certainly, that "thoughtful justification" is always important > and welcome. For what it's worth, though, I think it overstates the matter > a bit to characterize the religious-institutionalism arguments as pressing > a blanket right to "opt out of the welfare state" or even to avoid, as a > general matter, "sharing in its burdens." (I try to respond to a powerful > form of this "opt out" argument, advanced by Robin West, here: > http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297586). > > It is true, for sure, that many of these arguments invoke spheres, > jurisdiction, sovereignty, autonomy, etc., in an effort explain why the > entirely appropriate regulatory power of the welfare state does not or > should not extend to certain matters. But I don't see (or hear?) discord > between, say, arguing for equal treatment / nondiscrimination in Trinity > Lutheran and for church-autonomy in, say, Hosanna-Tabor. > > Best wishes, > > Rick > > > > On Mon, Jan 18, 2016 at 9:21 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> Mark, this is certainly true, and important: >> >> "The Remonstrance was written at a time when states did not provide >> extensive benefits to most people or at least was not omnipresence in all >> aspects of their lives. Not a penny shall go to a church is a lot harder >> to figure out when lots of government pennies go to lots of different >> things." >> >> And that's why almost everyone -- including on this list -- would not >> have much trouble with religious organizations receiving *entitlements* that >> are available to everyone, with police and fire protection being the >> canonical example. The difficulties, however, are (at least) twofold: >> >> 1. Virtually all of these cases, including *Trinity Lutheran*, involve >> not entitlements, but instead scarce (often competitive) resources, such as >> selective grants. In most such cases (but apparently not *LT*), >> government decision-makers must make subjective judgments about which >> recipients are most worthy, which obviously raises constitutional concerns >> when churches are in the mix. And even where the criteria are wholly >> neutral and nondiscretionary, I think there's an uneasiness about the state >> conferring highly desirable, very selective benefits on religious >> institutions while others do without. In part because of . . . >> >> 2. Alan's point, which is that such institutions simultaneously >> insist--often for very compelling reasons--that they should not be made to >> share in the burdens of the welfare state, even when it comes to >> obligations in the commercial sphere, involving virtually universal >> obligations (see Zubik). Moreover, we're witnessing a flourishing of >> scholarship defending the notion of "separate" spheres and institutional >> autonomy--the right to opt *out *of the welfare state, as it were--but >> many of those same voices insist that the "autonomous" institutions are >> entitled to equal treatment on the benefits side, even with respect to >> scarce resources. This (all the benefits, less-than-all of the burdens) >> might well be very defensible; but it's certainly at least somewhat >> discordant, and thus cries out for thoughtful justification. >> >> >> >> On Mon, Jan 18, 2016 at 9:05 AM, Graber, Mark <mgra...@law.umaryland.edu> >> wrote: >> >>> To pile on a bit and to invoke Seidman and Tushnet, REMNANTS OF BELIEF, >>> the problem is not simply the original intent per se, but the welfare >>> state. The Remonstrance was written at a time when states did not provide >>> extensive benefits to most people or at least was not omnipresence in all >>> aspects of their lives. Not a penny shall go to a church is a lot harder >>> to figure out when lots of governmet pennies go to lots of different things. >>> ______________________ >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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