Equality cannot be the only prism for measuring Religion Clause norms. Non-establishment does at times mandate different treatment -- favorable to religion in the context of the ministerial exception, and unfavorable in the context of public school sponsored speech. A public school may sponsor a morning recitation of "Ode on a Grecian Urn," but not the NY Regents Prayer, the Lord's Prayer, etc.
Whether government funding should be seen the same way as state sponsored speech is a question, and "equal treatment is not establishment" cannot be the simple answer. We have a deep and abiding constitutional principle that the government may not pay to build houses of worship or to pay the salaries of clergy in private faith communities. So if a state sets up a direct funding program to help build structures for valuable community institutions, longstanding principles would say the program can help pay to build an art museum or musical venue, but cannot offer money to build a church, mosque, or synagogue. I understand that we can always debate whether to maintain that settlement. And the Trinity Lutheran Church case, involving grants for safe surfaces in playgrounds, hardly tests the core of it -- rather, it tests whether the states can expand the periphery of that no funding principle. The rationale for the principle -- fear of sect discrimination; fear of government control over the subsidized church; fear over politicization of the church's teachings so as to curry favor with appropriators; fear of rivalry among sects for public resources -- may or may not be implicated in a given case. The grant system for safe surfaces in playgrounds in Missouri at least touches on the possibility of sect discrimination -- would mosques be treated equally with popular Protestant denominations? If we fear otherwise, should we have a prophylactic anti-funding rule, or just closely monitor for sect discrimination? These are subtle questions, not answered adequately by claims for formal equality. On Thu, May 5, 2016 at 5:20 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Here’s how I understand the state of play with regard to > discrimination in favor of and against religious institutions and beliefs. > > > > 1. When it comes to *government spending*, the Court has > already generally taken the view that religious institutions can’t get > special benefits. See *Texas Monthly v. Bullock* and the implications of > the old funding cases, even as modified by *Mitchell *and *Zelman*. The > question in *Trinity Lutheran* is where we should move more towards equal > treatment – no special money for religious institutions, but no special > exclusion from generally available money (subject to *Locke*) – or have a > rule in which discrimination in favor of religious institutions in funding > is forbidden, but discrimination against them is allowed. > > > > 2. When it comes to *direct regulation*, the law is > already pretty clear. The government may not discriminate against > religious practices and institutions, see *Lukumi*; I don’t think anyone > is challenging that in *Trinity. *But the government may (in some > instances) exempt only religious practices and institutions, see *Yoder*; > *Frazee*; *Cutter*, and in a few situations must exempt religious > practices and institutions, even if it doesn’t exempt similar secular ones, > see *Hosanna-Tabor *and what remains of *Yoder *and *Frazee*. I’m not > sure this is right; perhaps the rule should be mandatory equal treatment > when it comes to regulation and exemption, as Harlan argued in *Welsh* > and as Stevens argued in *Boerne*. But the rule we have is pretty well > settled. > > > > It may be theoretically possible that this clear state of > the law in item 2 will somehow be undermined by equal treatment for > religious institutions in item 1. But I don’t see that as especially > likely – and I thus don’t see why it makes sense for religious institutions > to give up the opportunity for equal treatment with regard to funding, on > the hope that somehow this will preserve favorable treatment with regard to > exemptions. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Thursday, May 05, 2016 9:33 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Trinity Lutheran Church - will churches have to extend > "equal protection" to all when it comes to use? > > > > As I understood Michael's observation, it was that the topside briefs in > *Trinity > Lutheran* argue at great length that churches, as such, can virtually > never be disfavored vis-a-vis similarly situated secular institutions, > under both the Free Exercise and Equal Protection Clauses -- whereas the > writers of those briefs would, of course, strongly argue that a legislature > generally can, and sometimes must, treat churches *more favorably* than > such secular institutions. His fear, as I understood it (but perhaps I > misunderstood him), was that the emphasis on formal equality in the briefs > might prompt the Court to settle upon a holding closer to strict formal > equality than it has ever previously announced -- which could be damaging > to claims for permissive accommodations (akin to the fears raised by the > "HHS can't favor churches" argument of the petitioners in *Zubik*). > > > > On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > Hasn't that ship sailed already? We know from Bob Jones that > religious universities are subject to loss of their charitable tax > exemption if they discriminate, and that the government indeed can and does > use the threat of withdrawing funds as a means for changing church policy. > Maybe in some super-pure world whether religious institutions didn't even > get tax exemptions, they could resist such restrictions. But even there, > of course, the government would have broad power to impose restrictions, > just in its capacity as sovereign and even without funding; recall, for > instance, the New Jersey wedding venue case, where a church-owned venue was > held subject to antidiscrimination law even without any funding hook. > > Surrendering any Free Exercise Clause claims to equal treatment in > funding, as a means of trying to strengthen their claims to autonomy, would > be a poor choice for churches, I think. Those who want to impose > antidiscrimination laws on churches and church-owned organizations > generally aren't terribly interested in giving churches such autonomy, > whether or not churches get equal access to generally available benefits. > > Eugene > > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Michael Peabody > > Sent: Thursday, May 05, 2016 8:47 AM > > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > > Subject: Trinity Lutheran Church - will churches have to extend "equal > > protection" to all when it comes to use? > > > > In reading the briefs on the Trinity Lutheran Church case, I see a lot > of reference > > to churches being denied "equal protection" when state laws specifically > prohibit > > them from participating in otherwise neutral state aid programs that are > > available to other civic institutions. Yet churches often vigorously > argue that > > they are exempt from "equal protection" when it comes to access to their > > facilities. > > > > But in turn, let's say that Trinity wins the case - does that mean that > churches > > that receive the funding could be subject to discrimination claims > brought by > > citizens who are prohibited from accessing the infrastructure, or are > > discriminated against while on the infrastructure, because the church > teaches > > against their protected class (i.e. religion, gender, sexual > orientation, etc.)? > > > > I'm thinking that churches that argue for equal protection when it comes > to > > compelling state funding of their institutions, and claim that they > should be on > > an equal footing when it comes to similar secular civic organizations, > should > > recognize that civic organizations are also held to a higher standard > when it > > comes to discrimination claims. > > > > Churches that receive funding and simultaneously seek to reserve the > right to > > discriminate should expect that they will be held to the same > non-discrimination > > standards as other civic organizations as a condition of receiving such > funding > > and that they will need to take "equal protection" into account when it > comes to > > people and other organizations which seek to access and use churches' > state- > > > funded infrastructure. > > > > > Put simply, could Trinity Lutheran Church be a Trojan Horse? > > > > I would be interested in your thoughts. > > > > Michael Peabody, Esq. > > ReligiousLiberty.TV > > _______________________________________________ > > 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. > > > > _______________________________________________ > 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. > -- 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 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.
