I have been struck this week by how almost all of the pro-state discussion of Trinity Lutheran has focused on the problem of discrimination by state funded churches (i.e., why should taxpayers fund activities from which some are invidiously excluded?). It's as if we (academics as well as informed journalists) have all forgotten the origins and justifications of no-funding rules. Madison's Memorial & Remonstrance, the classic defense of such rules, is certainly not concerned with discrimination by recipient churches. It is, rather, focused on other policies that justify separation in funding matters -- religious voluntarism (not forcing taxpayers to subsidize faiths with which they disagree or agree); the danger of church dependence on the state; mutual corruption of church and state that financial relationships might produce, etc.. As John Ely wisely wrote, the Establishment Clause is a separation of powers provision, and the same is true for the state constsitutions' no-funding provisions, including Missouri's. Of course, times have changed, and the state now provides many more forms of largesse, including funds for safe playground surfaces. So we can argue about whether it is wise to relax state-based no funding rules (the 1st A rules have already been relaxed to some extent), or whether it is fair to exclude churches from some forms of largesse. (No one is excluding them from police and fire protection). My point here is that the Madisonian understanding of church-state separation, and the no-funding rules that followed, has been largely lost. Maybe that's because the fight, so prominent from the mid-19th century until relatively late in the 20th century, about funding Catholic schools has long been over. Maybe our collective forgetfulness about the Madisonian narrative is also about the expanded welfare state, where religious communities play a huge partnership role. Maybe we now have full confidence in religious pluralism and the unlikelihood of sectarian discrimination by the state, though the continuing experience of Muslims and Native Americans in the U.S. should be a cautionary note on that one. All I know for sure is that the conversation has changed. Not even Justices Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining continuity with that tradition. When the no-funding tradition is reduced to a formal rule -- the state cannot write a check to the church -- it will soon disappear in the face of countervailing legal and political pressure. And I must add that the idea that the Free Exercise Clause, as *an original matter*, entitles houses of worship to equal treatment in state funding arrangements seems spectacularly unpersuasive. So let's see what our new Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity Lutheran.
On Fri, Apr 21, 2017 at 2:30 PM, Alan E Brownstein <aebrownst...@ucdavis.edu > wrote: > I think the question Michael poses is more complicated than his posts > suggest in important respects, but I also think the dischordant rights > argument he presents has substantial force. > > > From an analytic perspective, because religion implicates not only liberty > values but group and identity values, and speech values, I think there are > cases where religion may need to be treated differently than non-religion > and situations where it should be treated the same as non-religion. But > equality and speech consequences present powerful counterweights to the > idea that religious institutions should as a general matter receive special > exemptions from general laws because of their distinctive nature while at > the same time be eligible for government grants and largess on the same > terms as their secular counterparts. > > > From a policy perspective, I might rephrase Michael's question this way > (my apologies Michael if my rephrasing does not capture your meaning), If a > pre-school operated by an adjacent church should be conceptualized as > religious for the purpose of evaluating claims that 1. unlike its secular > counterparts, it should be permitted to discriminate on the basis of > religious belief and conduct in hiring staff -- including playground > monitors; 2. unlike its secular counterparts it should be permitted to > discriminate on the basis of religious belief and conduct in admitting > students -- even if most of what the students do is to play on the > playground; 3. unlike its secular counterparts it should be provided > additional discretion in designing its curriculum, and 4. unlike its > secular counterparts, it should be protected against certain burdensome > land use regulations -- then why shouldn't the pre-school be conceptualized > as religious for the purpose of determining its eligibility to receive > government funds. > > > Finally, from a political and rhetorical perspective, based solely on > anecdotal evidence (but that includes a lot of talks to a lot of lay > audiences and various advocates and advocacy groups for a lot of years) I > suggest: > > > Few arguments have been as effective in my discussions with progressive or > secular audiences in arguing for distinctive treatment (e.g. > accommodations) for religious individuals and institutions as the argument > that the distinctiveness of religion is recognized and taken into account > for establishment clause purposes and concerns in limiting government > funding of religion. > > > The unwillingness of progressive or secular groups to accept > accommodations and exemptions for religious institutions increases > exponentially when the religious institution receives government funds -- > and the rejection of accommodations reaches its zenith when the government > funds support the very activities for which an accommodation is sought. An > argument for religious institutional autonomy including exclusionary > decisions that resonates with progressive and secular audiences is the idea > that religious institutions are using private funds donated to them for the > furtherance of sacred purposes and accordingly, they should be able to > limit the use of those funds to only those activities and individuals that > reflect that mission. That argument is not only unpersuasive, it is > counterproductive, when public funds are at issue. > > > At its harshest, the argument is expressed that religion will be > characterized as sufficiently distinct from non-religion to require > different treatment or sufficiently similar to non-religion to require > similar treatment based solely on whichever characterization produces a > favorably outcome for religion. When the characterization of religion > is thought to be manipulated gamesmanship, support for religious liberty is > diminished. > > > At least this has been my experience. > > > Alan > > > > > > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu <religionlaw-bounces@lists. > ucla.edu> on behalf of Michael Peabody <mich...@californialaw.org> > *Sent:* Thursday, April 20, 2017 8:47:24 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Trinity Lutheran and the ERISA cases - Do Churches Want > Special Treatment or Not? > > Thank you. It is helpful and yet I see an ultimate collision between the > dischordant rights to both be free from discrimination and also to > discriminate. > > I suppose what I'm looking for is what happens when a church is able to > get funding from the state for a project but then relies on free exercise > to discriminate against a protected class in how that state-funded project > is used. > > For instance, let's say that Trinity Lutheran gets it's playground and the > state has a non-discrimination requirement. Trinity normally uses the > property but occasionally rents it out ay a nominal cost for events. An > same-sex couple wants to get married there (obviously this particular > example isn't perfect and I don't know what the church thinks about > same-sex marriage) and the church declines the request citing religious > reasons. > > In this scenario, Trinity would have achieved access to state-funded > infrastructure by prevailing in a claim of anti-religious discrimination by > the state, but then would claim that it could in turn discriminate in the > use of this same infrastructure against LGBTQ persons. And if the state > tried to enforce a non-discrimination policy, the church would claim the > protection of church-state separation and defend its right to discriminate. > So suddenly the already limited state resources are further hampered by > virtue of the fact that the church is religious. > > So this circles around to the question - can a church that intends to use > state funding in a discriminatory manner really present itself on an equal > footing with secular non-profits when applying for state grants, or does > the religious institution's discriminatory bent need to be taken into > account when a state is dispensing limited state grants funds? > > Michael Peabody, Esq > President, > Founders First Freedom > Foundersfirstfreedom.org > > On Apr 20, 2017 5:51 PM, "Christopher Lund" <l...@wayne.edu> wrote: > >> I don’t think there’s anything necessarily inconsistent with the two >> positions you describe. Religion might be entitled to special treatment in >> some cases, but equal treatment in others. (Doesn’t everyone, at some >> level, believe that?) Certainly the Court does. The Court has, for >> example, said that ministers must be accorded special (not equal) treatment >> in some constitutional contexts (like their ability to bring >> employment-discrimination claims—see Hosanna-Tabor v. EEOC), but that >> ministers must be accorded equal (not special) treatment in other >> constitutional cntexts (like their ability to sit in the constitutional >> convention—see McDaniel v. Paty). And the Court was unanimous both times! >> >> >> >> For the classic reconciliation of the pro-exemption position and the >> equal-funding position, see Doug Laycock’s piece, Formal, Neutral, and >> Substantial Neutrality, available here, http://via.library.depaul.edu/ >> cgi/viewcontent.cgi?article=2059&context=law-review. Or just read this, >> http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html. >> I’d add my own thoughts, but I’m running out of time. >> >> >> >> Also, by the way, you could have just as easily framed your point the >> other way: Why do people insist that religious groups are not entitled to >> special exemptions because of some dominant equality principle, but then >> yet insist that religious groups cannot even be treated equally when it >> comes to funding? >> >> >> >> (And I should say that I think both of those framings—both yours and >> mine—are misleading and ultimately too harsh on the people who hold those >> views.) >> >> >> >> Best, >> >> Chris >> >> ___________________________ >> >> Christopher C. Lund >> >> Associate Professor of Law >> >> Wayne State University Law School >> >> 471 West Palmer St. >> >> Detroit, MI 48202 >> >> l...@wayne.edu >> >> (313) 577-4046 (phone) >> >> Website—http://law.wayne.edu/profile/christopher.lund/ >> >> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@li >> sts.ucla.edu] *On Behalf Of *Michael Peabody >> *Sent:* Thursday, April 20, 2017 8:06 PM >> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu >> > >> *Subject:* Trinity Lutheran and the ERISA cases - Do Churches Want >> Special Treatment or Not? >> >> >> >> This term the Supreme Court is hearing two cases involving whether or not >> churches should be treated the same as other non-profit organizations, and >> I want to make sure I have this straight. >> >> >> >> First, in *Advocate Health Care Network v. Stapleton*, heard March 27, >> religious hospitals are claiming that they should be treated differently >> from other non-profit organizations when it comes to whether they need to >> comply with ERISA regulations that require them to adequately fund employee >> pension plans. If I understand it correctly, their central argument is that >> they are so closely affiliated with churches that their plans are, >> effectively, "established and maintained ... by a church." >> >> >> >> In the hospital ERISA cases, religious institutions are demanding special >> treatment BECAUSE they are religious. >> >> >> >> Now, in *Trinity Lutheran Church v. Pauley*, heard April 19, a church is >> claiming that they should NOT be treated differently from other non-profit >> organizations when it comes to whether or not they can participate in a >> state program that provides funding for playground resurfacing material >> when doing so would violate the state constitution. >> >> >> >> In the Trinity Lutheran case and as indicated by amici, religious >> institutions are demanding that they be treated THE SAME as secular >> non-profit organizations. >> >> >> >> So do churches want to be treated in a discriminatory manner or not? It >> seems that if regulations could impose some kind of financial >> responsibility on them, church-state separation applies. Yet, if they can >> get some infrastructure upgrade benefit, churches want to fully participate >> with no such separation. >> >> >> >> But what will happen if the state, in return, imposes non-discrimination >> provisions on the churches for the use of the state-funded infrastructure? >> Would they still be treated the same as other non-profits and be required >> to open their facilities to all, or will they then be able to assert the >> protection of church-state separation? >> >> >> >> >> >> Michael Peabody, Esq. >> President, >> >> Founders First Freedom >> >> foundersfirstfreedom.org >> >> >> >> >> >> _______________________________________________ >> 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 301-928-9178 (mobile, preferred) 202-994-7053 (office) 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.
