Well said Chip, and if there was a true originalist on the Court, there isn't, 
they'd know the only true original meaning of Article III that we are sure 
about is there must be two adverse parties. In this case, there aren't.

Best,

Eric

Sent from my iPhone

On Apr 21, 2017, at 5:24 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

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<mailto: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<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Michael Peabody 
<mich...@californialaw.org<mailto: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<http://foundersfirstfreedom.org>

On Apr 20, 2017 5:51 PM, "Christopher Lund" 
<l...@wayne.edu<mailto: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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvia.library.depaul.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D2059%26context%3Dlaw-review&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534861402&sdata=CHVI%2BrY1JmNSikaF%2FBtYHDW7CEA8pjA%2By%2Bx5GutIUp4%3D&reserved=0>.
  Or just read this, 
http://lists.ucla.edu/pipermail/religionlaw/2016-January/029330.html<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fpipermail%2Freligionlaw%2F2016-January%2F029330.html&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534861402&sdata=XyxstX43hqS1dDWZ68jW%2B57uks5bvsoYoLnvntUxgVQ%3D&reserved=0>.
  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<mailto:l...@wayne.edu>
(313) 577-4046<tel:(313)%20577-4046> (phone)
Website—http://law.wayne.edu/profile/christopher.lund/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flaw.wayne.edu%2Fprofile%2Fchristopher.lund%2F&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=YBz7HFlbCK6ZN87yCb7%2B0EESpdEGy700SvE%2F%2BbrHWL8%3D&reserved=0>
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D363402&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=UxFPuFG34GsxDj4MsNCHhe3nj6U%2F9BdccT1DUTe4%2BJg%3D&reserved=0>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.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<mailto: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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Ffoundersfirstfreedom.org&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=4hz6EfSFw7rhHXhRy1eTLegNQ07G%2FRn0iPlKYf%2BnYyY%3D&reserved=0>



_______________________________________________
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=iijaRt2mb6yM%2Bwg2Jx%2BO82FW%2BSJNFycvtoGF%2FKv0WdY%3D&reserved=0>

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<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=iijaRt2mb6yM%2Bwg2Jx%2BO82FW%2BSJNFycvtoGF%2FKv0WdY%3D&reserved=0>

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<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D181272%23reg&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=rpiGHvJHz6V6gRtLk6qOXd4ZDjq8UH4XtLM9dsqNe%2FM%3D&reserved=0>
_______________________________________________
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=02%7C01%7Cesegall%40gsu.edu%7Cf313aa9ccc0f4f0234fd08d488fcc0b6%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636284066534871406&sdata=iijaRt2mb6yM%2Bwg2Jx%2BO82FW%2BSJNFycvtoGF%2FKv0WdY%3D&reserved=0

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.

Reply via email to